| 1 | | - | Amended IN Senate June 18, 2018 Amended IN Assembly April 18, 2018 Amended IN Assembly March 19, 2018 CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION Assembly Bill No. 2825Introduced by Assembly Member Jones-Sawyer(Coauthor: Assembly Member Gonzalez Fletcher)February 16, 2018 An act to amend Sections 1788.1, 1788.2, 1788.10, 1788.11, 1788.12, 1788.13, 1788.14, 1788.15, 1788.16, 1788.17, 1788.18, 1788.50, 1788.52, 1788.54, 1788.56, 1788.58, and 1788.60, of add Title 1.6C.6 (commencing with Section 1788.70) and Title 1.6C.7 (commencing with Section 1788.90) to Part 4 of Division 3 of the Civil Code, and to add Article 3 (commencing with Section 22857) to Chapter 10 of Division 11 of the Vehicle Code, relating to debt collection and buying. collection.LEGISLATIVE COUNSEL'S DIGESTAB 2825, as amended, Jones-Sawyer. Debt collection: debt buying. collection: practices.Existing law, the Rosenthal Fair Debt Collection Practices Act, is intended 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 those debts. Existing law prohibits a debt collector from, among other things, collecting or attempting to collect a consumer debt by means of 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.This bill would expand the act to apply enact analogous provisions applicable to collections or attempts to collect a nonconsensual obligation to pay, which the bill would define to mean the charges underlying a lien created by operation of law, unpaid parking penalties, or past due residential rent and associated late fees, certain government debts and debts arising from towed or impounded vehicles, as specified. The bill would prohibit government and towing debt collectors, as defined, from engaging in specified collection practices and would require the person collecting to provide the debtor with specified information regarding the debt, including specified language requirements for the information provided.Existing law makes it a crime, with respect to attempted collection of a consumer debt, for a debt collector, creditor, or an attorney, to send a communication that simulates legal or judicial process or that gives the appearance of being authorized, issued, or approved by a governmental agency or attorney if it is not.This bill would expand that provision to make it a crime to engage in those act acts with respect to the collection of a nonconsensual obligation to pay. certain government debts and debts arising from towed or impounded vehicles. The bill would also establish civil penalties for violations and would authorize a consumer to bring a civil action against a debt collector or attorney who violates these provisions. By expanding a crime, the bill would impose a state-mandated local program.Existing law requires a debt collector to stop collecting a consumer debt when an alleged debtor provides the debt collector certain information, including information relating to the debtors status as an alleged victim of identity theft. This information may also include a specified written statement that certifies that the representations are true, correct, and contain no material omissions of fact. A person submitting the certification who declares as true a material matter that the person knows to be false is guilty of a misdemeanor.This bill would expand those provisions to also apply in the case of collection of a nonconsensual obligation to pay. The bill would thereby expand the scope of a crime and impose a state-mandated local program.Existing law regulates the activities of a person or entity that has bought charged-off consumer debt, as defined, for collection purposes and the circumstances pursuant to which the person may bring suit. Existing law, among other things, prohibits a debt buyer, as defined, from making any written statement in an attempt to collect a consumer debt unless the debt buyer possesses information that the debt buyer is the sole owner or is authorized to assert the rights of all owners of the specific debt at issue, the debt balance, as specified, and the name and address of the creditor at the time the debt was charged off, among other things. This bill would expand those provisions to apply to the purchase of charged-off nonconsensual obligations to pay, as defined, for collection purposes.Existing law authorizes certain individuals to cause the removal of a vehicle found upon a highway or public land or a vehicle parked on private property under specified conditions.This bill would make a person who violates these provisions, with certain exemptions, liable for specified damages.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that no reimbursement is required by this act for a specified reason.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Title 1.6C.6 (commencing with Section 1788.70) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 1.6C.6. FAIR DEBT COLLECTION PRACTICES FOR CERTAIN GOVERNMENT DEBTS. 1788.70. The following definitions apply for the purpose of this title:(a) The term government debt collection means any act or practice in connection with the collection of obligations to pay that are due and owing to a public agency.(b) The term government 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.(c) The term government debt means (1) unpaid parking penalties under Section 40220 of the Vehicle Code, (2) unpaid traffic tickets, or (3) unpaid street vendor tickets.(d) The term public agency means any city, county, district, other local authority or public body of or within this state.(e) The term person means a natural person, partnership, corporation, limited liability company, trust, estate, cooperative, association, or other similar entity.(f) The term debtor means a natural person from whom a debt collector seeks to collect government debt that is due and owing or alleged to be due and owing from the person.(g) 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.1788.71. A government debt collector shall not collect or attempt to collect a government debt under this title by means any 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, the reputation, or the property of any person.(b) The threat that the failure to pay a government debt will result in an accusation that the debtor has committed a crime if the 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 government debt, that the government 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 government debt with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the government debt.(e) The threat to any person that nonpayment of a government 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 or payments of the debtor, unless that action is, in fact, contemplated by the government debt collector and permitted by law.(f) The threat that the failure to pay a government debt will result in contacting immigration enforcement.(g) The threat to take any action against the debtor that is prohibited by this title.1788.72. A government debt collector shall not collect, or attempt to collect, a government debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity and the identity of the collection agency the caller represents.(c) Causing expense to any person for long distance telephone calls, telegram fees, or charges for other similar communications by misrepresenting to the person the purpose of the telephone call, telegram, or similar communication.(d) Causing a telephone to ring repeatedly or continuously to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, so frequently as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.73. A government debt collector shall not collect or attempt to collect a government debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the government debt unless that communication is necessary to the collection of the government debt, or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the government debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishment of the debtors wages after judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days, and shall be made only as many times as is necessary for the collection of the government debt. Communications to a debtors employer regarding a government 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a government debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, prior to obtaining judgment against the debtor, except when the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of an obligation to pay a government debt, commonly known as deadbeat lists, or advertising government debt for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the obligation to pay, or the debtor other than the name, address, and telephone number of the debtor and the debt collector, and that is intended both to be seen by any other person, and also to embarrass the debtor.1788.74. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices:(a) Any communication with the debtor other than in the name either of the debt collector or the public agency 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 the communication is by an attorney or counselor at law, or has been approved or authorized by an attorney or counselor at law.(d) The representation that the government debt collector is vouched for, bonded by, affiliated with, or is an instrumentality, agent, or official of any federal, state, or local government, or of any agency of federal, state, or local government, unless the collector is actually working on behalf of the particular governmental agency in question, and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the government debt may be increased by the addition of attorneys fees, investigation fees, service fees, penalties, finance charges, or other charges, fees, or penalties, if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) Any representation that information concerning a debtors failure or alleged failure to pay a government debt has been, or may be, referred to a consumer reporting agency.(g) The false representation that a government 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 government debt is made.(k) The false representation that a government debt has been, is about to be, or will be sold, assigned, or referred to a government debt collector for collection.(l) Any communication by a collection agency to a debtor demanding money unless the claim for government debt is actually assigned to the collection agency.1788.75. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a government debt that has been discharged in bankruptcy without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or any other expense incurred by the debt collector in the collection of the government debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the government debt when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the government debt, and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the government debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the obligation in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.1788.76. It is unlawful, with respect to attempted collection of a government debt, for a government debt collector or attorney to send a communication that simulates legal or judicial process, or that gives the appearance of being authorized, issued, or approved by a public 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.1788.77. Notwithstanding any other provision of this title, a government debt collector collecting or attempting to collect a government debt must comply with the following provisions: (a) Comply with all federal law regarding collection of government debt.(b) A government debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A government debt collector shall not state that such debtor owes any debt.(3) A government debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the government debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.(4) A government debt collector shall not communicate by postcard.(5) A government debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the government debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the government debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the government debt collector.(c) (1) In any communication in connection with government debt collection, a government debt collector shall not, without the prior consent of the debtor given directly to the government debt collector or the express permission of a court of competent jurisdiction, a government debt collector may not communicate with a debtor in connection with the collection of any government debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a government debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the government debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the government debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the government debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the government debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a government debt collector may not communicate, in connection with the collection of any government debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the government debt collector.(3) When ceasing communication with a debtor, the government debt collector shall do all of the following:(A) Advise the consumer that the government debt collectors further efforts are being terminated.(B) Notify the debtor that the government debt collector or creditor may invoke specified remedies which are ordinarily invoked by such government debt collector or public agency.(C) Where applicable, notify the debtor that the government debt collector or public agency intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A government debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay government debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any government debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the government debt collector or public agency intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information that is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication that simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the government debt collector is attempting to collect a government debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a government debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A government debt collector shall not use unfair or unconscionable means to collect or attempt to collect any government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a government debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the government debt collectors intent to deposit any check or instrument not more than 10 business days nor less than three business days prior to any deposit.(3) The solicitation by a government debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a government debt by postcard.(8) Using any language or symbol, other than the government debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any government debt, a government debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the public agency or other entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the government debt collector.(D) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the government debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the government debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the government debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any government debt collector with respect to such debts, the government debt collector shall not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any government debt collector who brings any legal action on a government debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring that action only in a judicial district or similar legal entity in which the real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the government debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes such public agency or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A government debt collector shall not be held liable in any action brought under this section if the government debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.78. (a) A government debt collectors initial communication with a debtor in connection with the collection of any government debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the government debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the government debt, or any portion thereof, the government debt will be assumed to be valid by the government debt collector.(4) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the government debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the government debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the government debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the public agency with which the government debt originated, if different from the current holder of the government debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated, (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model, and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert government debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to ____.](b) If the debtor notifies the government debt collector in writing within the 30-day period described in subdivision (a) that the government debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the government debt collector obtains verification of the government debt or a copy of a judgment, or the name and address of the public agency with which the debt originated, and a copy of such verification or judgment, or name and address of the public agency with which the debt originated, is mailed to the debtor by the government debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the government debt collector in writing that the government debt, or any portion of the government debt, is disputed or that the debtor requests the name and address of the public agency with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the government debt or request the name and address of the public agency with which the debt originated.(c) A government debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the government debt collector cannot provide the information or documents within 15 calendar days, the government debt collector shall cease all collection of the debt until the government debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A government debt collector shall provide all debtors of government debt with whom it has contact an active postal address to which these requests can be sent. A government debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a government debt under this section shall not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice that does not relate to the collection of a government debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with government debt collection for purposes of this section.1788.79. A government debt collector shall provide the following information in its subsequent communication with a debtor with respect to a government debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) of Section 1788.78 in no less than 12-point type:(a) The balance of the government debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the public agency with which the government debt originated. This subdivision shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the government debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the public agency with which the debt originated, or by that public agencys agent or assignee if applicable.(b) The name, address, and telephone number of the public agency with which the government debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the government debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the government debt to the debt collector or the last known name and address of the debtor known to the government debt collector.(e) The name, address, and telephone number of all persons that purchased the governmental debt if applicable.(f) The statement that: You may contact the public agency with which the government debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that public agency.(g) If the government debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the government debt.(h) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the government debt and identifies the date of the event or events that created the government debt, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in such documents.(i) That the government debt collector cannot report the government debt to a consumer reporting agency.1788.80. The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ________ or write to _________.](a) In the event that a government debt collector or person as defined in Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that government debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(b) Under this title, government debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(c) Under this title, government debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(d) There shall be no separate charge for translation services.(e) The California Association of Collectors may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Association of Collectors may make these translated materials available on its Internet Web sites, free of charge, within one year and three months of the operative date of this section.1788.81. (a) A government debt collector who violates this title with respect to any debtor shall be liable to that debtor only in an individual action, and its 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) A government 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 its additional liability therein to that debtor shall be for a penalty in such amount as the court may allow that 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 attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A government debt collector shall have no civil liability under this title if, within 15 days after discovering a violation that 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 government debt collector shall have no civil liability, to which the debt collector might otherwise be subject for a violation of this title, if the government 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) An action under this section may be brought in any appropriate court of competent jurisdiction in an individual capacity and the statute of limitations shall be one year from the date of the occurrence of the violation.SEC. 2. Title 1.6C.7 (commencing with Section 1788.90) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. 1788.90. The following definitions apply for the purpose of this title:(a) The term towing debt collection means any act or practice in connection with the collection of towing debt.(b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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.(c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from:(1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code.(2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1.(3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims.(4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims.(d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment.(e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person.(f) The term lien has the same meaning as in Section 2872.(g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation.1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 towing debt will result in an accusation that the debtor has committed a crime if the 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 towing 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 towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services.(e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law.(f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement.(g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code.(h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law.(i) The threat to take any action against the debtor that is prohibited by this title.1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents.(c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication.(d) Causing a telephone to ring repeatedly in order to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor.1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 similar written instruments bearing the name of the attorney or counselor at law, unless the communication is by an attorney or counselor at law or has been approved or authorized by an attorney or counselor at law.(d) The representation that the 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 working on behalf of the particular governmental agency in question and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the towing debt may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges, fees, or penalties if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) The representation that information concerning a debtors failure or alleged failure to pay a towing debt has been, or may 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 towing debt is made.(k) The false representation that a towing debt has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money for a towing debt unless the claim is actually assigned to the collection agency.1788.95. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a towing debt that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the towing debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the towing debt, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the towing debt and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the towing debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the towing debt in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.(d) Accepting, collecting, or attempting to collect from the debtor the whole or any part of the towing debt that was discharged or otherwise satisfied, including by operation of law under Sections 9406 and 9608 of the Commercial Code, Section 3068.1 of the Civil Code, or Section 22851 of the Vehicle Code.1788.96. It is unlawful, with respect to attempted collection of a towing debt, for a debt collector 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.1788.97. (a) A towing debt collectors initial communication with a debtor in connection with the collection of any towing debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the towing debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the towing debt, or any portion thereof, the towing debt will be assumed to be valid by the towing debt collector.(4) A statement that if the debtor notifies the towing debt collector in writing within the 30-day period that the towing debt, or any portion thereof, is disputed, the towing debt collector will obtain verification of the towing debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the towing debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the public agency with which the towing debt originated, if different from the current holder of the towing debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert towing debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to____.](b) If the debtor notifies the towing debt collector in writing within the 30-day period described in subdivision (a) that the towing debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the towing debt or a copy of a judgment, or the name and address of the entity with which the debt originated, and a copy of the verification or judgment, or the name and address of the entity with which the debt originated, is mailed to the debtor by the towing debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the towing debt collector in writing that the towing debt, or any portion of the towing debt, is disputed or that the debtor requests the name and address of the entity with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the towing debt or request the name and address of the entity with which the debt originated.(c) A towing debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the towing debt collector cannot provide the information or documents within 15 calendar days, the towing debt collector shall cease all collection of the debt until the towing debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A towing debt collector shall provide all debtors of towing debt with whom it has contact an active postal address to which these requests can be sent. A towing debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a towing debt under this section may not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice which does not relate to the collection of a towing debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with towing debt collection for purposes of this section.1788.98. A towing debt collector shall provide the following information in its subsequent communication with a debtor with respect to a towing debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) in no less than 10-point font:(a) The balance of the towing debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the entity with which the towing debt originated. This section shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the towing debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the entity with which the debt originated, or by that entitys agent or assignee, if applicable.(b) The name, address and phone number of the public agency with which the towing debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the towing debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the entitys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the towing debt collector.(e) The name, address and telephone number of all persons that purchased the towing debt if applicable.(f) The statement that: You may contact the entity with which the towing debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that entity.(g) That the debtor may contact the entity with which the towing debt originated to seek the existence of and his or her eligibility for any repayment plan assistance offered by that entity.(h) If the towing debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the towing debt.(i) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code, or, if a copy of the documents are unavailable, a statement providing any available information that would customarily be included in such documents.(j) That the towing debt collector cannot report the government debt to a consumer reporting agency.(k) That the towing debt collector cannot sue the debtor for the towing debt if more than one year has passed since the towing debt arose.1788.99. The following notification shall be placed in no smaller than 12-point type on the notices required by this title.(a) The towing fees and access notice.(b) Notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code.[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ .](c) In the event that a towing debt collector or person, as defined in Section 1788.90, has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that towing debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(d) Under this title, towing debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(e) Under this title, towing debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(f) There shall be no separate charge for translation services.(g) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.1788.100. (a) A towing debt collector who violates Sections 1788.90 to 1788.98, inclusive, with respect to any debtor shall be liable to that debtor only in an individual action, and the debt collectors 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) A towing 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 its 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 the costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A towing debt collector shall have no civil liability under this title if, within 15 days 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 towing debt collector shall have no civil liability to which the debt collector might otherwise be subject to for a violation of this title, if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adopted to avoid the violation.(f) An 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) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.(h) Any intentional violation of the provisions of this title by the debtor may be raised as a defense by the towing debt collector, if the violation is pertinent or relevant to any claim or action brought against the towing debt collector by or on behalf of the debtor.1788.101. (a) A debt buyer that purchases a towing debt from a person shall not make any written statement to a debtor in an attempt to collect the towing debt unless the debt buyer possesses all of the following information:(1) That the debt buyer is the sole owner of the towing debt at issue or has the authority to assert the rights of all owners.(2) The balance of the towing debt and an explanation of the amount, nature, and reason for all interest, fees, charges, or penalties, if any, imposed by the person from which the towing debt originated, its agent, its assignee, or by any subsequent purchaser of the towing debt, if applicable.(3) The name, address, and telephone number of the person from whom the towing debt originated.(4) The account or any citation number associated with the towing debt by the person from whom the towing debt originated, if such account or citation number exist.(5) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the debt collector.(6) The names and addresses of all persons who purchased the towing debt, if applicable. The names and addresses shall be in sufficient form so as to reasonably identify each person or entity that purchased the towing debt.(7) A copy of the original invoice, ticket, judgment, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including any notices under Sections 22852 and 40220 of the Vehicle Code, and under Sections 3071 to 3072 of the Civil Code, if applicable, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in those documents.(8) If the towing debt stems from the use, removal, or storage of a vehicle, the make, model, and if available, the license plate number of the vehicle shall be provided.(b) In an action brought by a debt buyer on a towing debt, the complaint shall contain the items listed in paragraphs (1) to (8), inclusive, of subdivision (a) and attach a copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt required by paragraph (7) of subdivision (a).(c) The requirements of this section shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.(d) This section shall not apply to towing debts that arise from fraud.(e) A debt buyer shall provide the information or documents identified in subdivisions (a) and (e) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the towing debt or proof of the towing debt. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the towing debt until the debt buyer provides the debtor the information or documents described in subdivision (a). A debt buyer shall provide all debtors with whom it has contact regarding a towing debt, an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(f) A debt buyer of a towing debt shall include with its first written communication with the debtor, in no smaller than 12-point type, a separate notice that provides all of the following language:(1) You may request records showing the following: (A) that [insert name of debt buyer] has the right to seek collection of the towing debt, (B) the debt balance, including an explanation of any interest charges, additional fees, or penalties, if any, (C) the date of the event that created debt, (D) the name of the entity with which the towing debt originated, and the citation, account, or identification number associated with the debt, (E) the name and last known address of the debtor as it appeared in the originating agencys or entitys records prior to the sale of the towing debt, as appropriate, and (6) the names of all persons or entities that have purchased the debt. You may also request from us the date of the events that created the towing debt, and a brief description of the event that created the towing debt.A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].We cannot report this towing debt to a creditor reporting agency.(2) Notice of assignment as provided under Section 3069 of the Vehicle Code.(3) Notice of assignment as provided under subparagraph (A) of paragraph (2) of subdivision (a) of Section 40220 of the Vehicle Code.(4) When collecting on a time-barred towing debt:The law limits how long you can be sued on a debt. Because of the age of your debt, we cannot sue you for it. (g) In the event of a conflict between the requirements of subdivision (g) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.(h) Notwithstanding any provision of law to the contrary, nothing shall prevent a person from selling a towing debt to a debtor buyer with all of the information required in subdivision (a) of Section 1789.1 at the point of purchase.(i) This section shall apply to debt buyers with respect to all towing debt purchased on or after January 1, 2019.1788.102. (a) All settlement agreements between a debt buyer and a debtor concerning towing debt shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a towing debt shall provide to the debtor, within 30 calendar days, a receipt, or monthly statement. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account, citation, or other identification number, the name of the person from whom the towing debt originated, the account, citation or other identification number associated with the towing debt, and the remaining balance owing, if any. The receipt or statement may be provided electronically.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the towing debt, shall provide, within 30 calendar days, a final statement to the debtor that complies with subdivision (b). Once a debt buyer has accepted a payment as payment in full, or as a full and final compromise, of the towing debt, the debt buyer shall not sell an interest in a resolved towing debt, or any personal or financial information related to the resolved towing debt.1788.103. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a towing debt if the applicable statute of limitations on the debt buyers claim has expired.1788.104. (a) In an action brought by a debt buyer on a towing debt the complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying towing debt and a description of the events from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the towing debt at issue, or has authority to assert the rights of all owners of the towing debt.(4) The towing debt balance and an explanation of the amount, nature, and reason for all interest, fees, or penalties, if any, imposed by the debt buyer or any entity which purchased the towing debt before the debt buyer. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the balance at time of acquisition of the debt, the total of any postacquisition interest, and the total of any postacquisition fees.(5) The date of the event or events that created the towing debt.(6) The name and an address of the person from which the towing debt originated, and the account, violation, or other identification number associated with the towing debt. The name and address shall be in sufficient form so as to reasonably identify the person from which the towing debt originated.(7) The name and last known address of the debtor as they appeared in the records of the person from which the towing debt originated prior to the sale of the towing debt. If the towing debt was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons that purchased the towing debt which were not the person from which the towing debt originated, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.100.(b) A copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt described in subdivision (b) of Section 1788.100 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.1788.105. (a) In an action initiated by a debt buyer to collect a towing debt, no default or other judgment may be entered against a debtor unless records, authenticated through a sworn declaration by the debt buyer, are submitted by the debt buyer to the court to establish the facts required to be alleged by subdivision (b) of Section 1788.103.(b) No default or other judgment may be entered against a debtor unless a copy of the document described in subdivision (b) of Section 1788.103, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a towing debt, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.1788.106. (a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:(A) Six years after entry of the default or default judgment against the person.(B) One hundred eighty days of the first actual notice of the action.(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.(B) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victims Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she 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 associated with the judgment.(C) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the towing debt.(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.(d) This section shall apply to a default or default judgment entered on or after January 1, 2019, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.(e) This section shall not limit the equitable authority of the court or other available remedies under law.1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following:(1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person.(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).(b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer.(c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court.(2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith.(d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected.(e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.(f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation.(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: (a) Comply with all federal law regarding collection of towing debt.(b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A towing debt collector shall not state that such debtor owes any debt.(3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information.(4) A towing debt collector shall not communicate by postcard.(5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector.(c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector.(3) When ceasing communication with a debtor, the towing debt collector shall do all of the following:(A) Advise the consumer that the towing debt collectors further efforts are being terminated.(B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity.(C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any towing debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit.(3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a towing debt by postcard.(8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector.(D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable.SEC. 3. Article 3 (commencing with Section 22857) is added to Chapter 10 of Division 11 of the Vehicle Code, to read: Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both.(b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections:(c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :](d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome.(g) There shall be no separate charge for translation services.(h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow.(b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith.(c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner.(d) 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.SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 1 | + | Amended IN Assembly April 18, 2018 Amended IN Assembly March 19, 2018 CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION Assembly Bill No. 2825Introduced by Assembly Member Jones-SawyerFebruary 16, 2018 An act to amend Sections 1788.1, 1788.2, 1788.10, 1788.11, 1788.12, 1788.13, 1788.14, 1788.15, 1788.16, 1788.17, 1788.18, 1788.50, 1788.52, 1788.54, 1788.56, 1788.58, and 1788.60, of the Civil Code, relating to debt collection and buying.LEGISLATIVE COUNSEL'S DIGESTAB 2825, as amended, Jones-Sawyer. Debt collection. collection: debt buying.Existing law, the Rosenthal Fair Debt Collection Practices Act, is intended 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 those debts. Existing law prohibits a debt collector from, among other things, collecting or attempting to collect a consumer debt by means of 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.This bill would expand the act to apply to collections or attempts to collect a nonconsensual obligation to pay, which the bill would define to mean the charges underlying a lien created by operation of law, unpaid parking penalties, or past due residential rent and associated late fees, as specified.Existing law makes it a crime, with respect to attempted collection of a consumer debt, for a debt collector, creditor, or an attorney, to send a communication that simulates legal or judicial process or that gives the appearance of being authorized, issued, or approved by a governmental agency or attorney if it is not.This bill would expand that provision to make it a crime to engage in those act with respect to the collection of a nonconsensual obligation to pay. By expanding a crime, the bill would impose a state-mandated local program.Existing law requires a debt collector to stop collecting a consumer debt when an alleged debtor provides the debt collector certain information, including information relating to the debtors status as an alleged victim of identity theft. This information may also include a specified written statement that certifies that the representations are true, correct, and contain no material omissions of fact. A person submitting the certification who declares as true a material matter that the person knows to be false is guilty of a misdemeanor.This bill would expand those provisions to also apply in the case of collection of a nonconsensual obligation to pay. The bill would thereby expand the scope of a crime and impose a state-mandated local program.Existing law regulates the activities of a person or entity that has bought charged-off consumer debt, as defined, for collection purposes and the circumstances pursuant to which the person may bring suit. Existing law, among other things, prohibits a debt buyer, as defined, from making any written statement in an attempt to collect a consumer debt unless the debt buyer possesses information that the debt buyer is the sole owner or is authorized to assert the rights of all owners of the specific debt at issue, the debt balance, as specified, and the name and address of the creditor at the time the debt was charged off, among other things. This bill would expand those provisions to apply to the purchase of charged-off nonconsensual obligations to pay, as defined, for collection purposes.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that no reimbursement is required by this act for a specified reason.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 1788.1 of the Civil Code is amended to read: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 nonconsensual obligations to pay, and to require debtors to act fairly in entering into and honoring debts, as specified in this title.SEC. 2. Section 1788.2 of the Civil Code is amended to read: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 and nonconsensual obligations to pay.(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 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 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 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 association, or other similar entity.(h) Except as provided in Section 1788.18, the term debtor means a natural person from whom a debt collector seeks to collect a consumer debt or nonconsensual obligation to pay that is due and owing or alleged to be due and owing from the 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 oral, or other communication of any information by a consumer reporting agency bearing on a consumers creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics characteristics, or mode of living that 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 consumers 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 the 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 who, 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 that uses any means or facility for the purpose of preparing or furnishing consumer credit reports.(l) The term lien has the same meaning as in Section 2872.(m) The term nonconsensual obligation to pay means (1) the charges underlying a lien created by operation of law under Section 2881, including towing and storage charges under Section 22851 of the Vehicle Code; (2) unpaid parking penalties under Section 40220 of the Vehicle Code; or (3) past due residential rent and associated late fees.SEC. 3. Section 1788.10 of the Civil Code is amended to read:1788.10. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay 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 or nonconsensual obligation to pay will result in an accusation that the debtor has committed a crime if the 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 or nonconsensual obligation to pay that 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 or nonconsensual obligation to pay, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the consumer debt or nonconsensual obligation to pay;(e) The threat to any person that nonpayment of the consumer debt or nonconsensual obligation to pay 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 that 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 that is prohibited by this title.SEC. 4. Section 1788.11 of the Civil Code is amended to read:1788.11. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, provided that an employee of a licensed collection agency may identify himself or herself by using his or her registered alias name as long as he or she correctly identifies the agency he or she represents.(c) Causing expense to any person for long distance telephone calls, telegram fees, or charges for other similar communications, by misrepresenting to the person the purpose of the telephone call, telegram, or similar communication.(d) Causing a telephone to ring repeatedly or continuously to annoy the person called.(e) Communicating, by telephone or in person, with the debtor so frequently as to be unreasonable and to constitute an a harassment to the debtor under the circumstances.SEC. 5. Section 1788.12 of the Civil Code is amended to read:1788.12. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices:(a) Communicating with the debtors employer regarding the debtors consumer debt or nonconsensual obligation to pay unless that communication is necessary to the collection of the debt or nonconsensual obligation to pay or unless the debtor or his attorney has consented in writing to the communication. A communication is necessary to the collection of the debt or nonconsensual obligation to pay only if it is made for the purposes of verifying the debtors employment, locating the debtor, or effecting garnishment, after judgment, of the debtors 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 the 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 or nonconsensual obligation to pay. Communications to a debtors employer regarding a debt or nonconsensual obligation to pay 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a consumer debt or nonconsensual obligation to pay to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, prior to obtaining a judgment against the debtor, unless the purpose of the communication is to locate the debtor, or if the debtor or his attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a consumer debt or nonconsensual obligation to pay, commonly known as deadbeat lists, lists, or advertising any consumer debt or nonconsensual obligation to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the consumer debt or nonconsensual obligation to pay, or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that 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 nonconsensual obligation to pay, or the debtor to a consumer reporting agency or to any other person reasonably believed to have a legitimate business need for the information shall not be deemed to violate this title.SEC. 6. Section 1788.13 of the Civil Code is amended to read:1788.13. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay 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 the communication is by an attorney or counselor at law or has been approved or authorized by an 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 the agency in the debt collection matter.(e) The false representation that the consumer debt or nonconsensual obligation to pay may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges if, in fact, those fees or charges may not legally be added to the existing obligation.(f) The false representation that information concerning a debtors failure or alleged failure to pay a consumer debt or nonconsensual obligation to pay 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 or nonconsensual obligation to pay is made.(k) The false representation that a consumer debt or nonconsensual obligation to pay has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money unless the claim is actually assigned to the collection agency.SEC. 7. Section 1788.14 of the Civil Code is amended to read:1788.14. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices:(a) Obtaining an affirmation from a debtor of a consumer debt or nonconsensual obligation to pay that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the consumer debt or nonconsensual obligation to pay, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor with regard to the consumer debt or nonconsensual obligation to pay, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the consumer debt or nonconsensual obligation to pay and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the consumer debt or nonconsensual obligation to pay be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the obligation in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.SEC. 8. Section 1788.15 of the Civil Code is amended to read:1788.15. (a) No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of judicial proceedings if 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 or nonconsensual obligation to pay 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 nonconsensual obligation to pay or the county in which the debtor resides at the time the proceedings are instituted, or resided at the time the debt or nonconsensual obligation to pay was incurred.SEC. 9. Section 1788.16 of the Civil Code is amended to read:1788.16. It is unlawful, with respect to attempted collection of a consumer debt or nonconsensual obligation to pay, for a debt collector, creditor, or an attorney, to send a communication that simulates legal or judicial process or that gives the appearance of being authorized, issued, or approved by a governmental agency or attorney if 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.SEC. 10. Section 1788.17 of the Civil Code is amended to read:1788.17. Notwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt or nonconsensual obligation to pay 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 persons principal. The references to federal codes in this section refer to those codes as they read January 1, 2001.SEC. 11. 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 or nonconsensual obligation to pay being collected by the debt collector.(2) The debtors written statement that the debtor claims to be the victim of identity theft with respect to the specific debt or nonconsensual obligation to pay 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 Commissions Affidavit of Identity Theft.(2) A written statement that contains the content of the Identity Theft Victims 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 debtors allegation of identity theft with respect to the debt or nonconsensual obligation to pay in question:(A) A statement that the debtor is a victim of identity theft.(B) A copy of the debtors drivers 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 or nonconsensual obligation to pay.(F) Any available correspondence disputing the debt or nonconsensual obligation to pay after transaction information has been provided to the debtor.(G) Documentation of the residence of the debtor at the time of the alleged debt or nonconsensual obligation to pay pay. 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 or nonconsensual obligation to pay 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 debtors name or personal information for incurring the debt or nonconsensual obligation to pay.(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, andcontain 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 debtors 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 Commissions 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 or nonconsensual obligation to pay in question. The debt collectors 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 collectors 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 or nonconsensual obligation to pay is valid or invalid, or that the debtor is liable or not liable for the debt or nonconsensual obligation to pay, 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 debtors 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 or a nonconsensual obligation to pay 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.SEC. 12. Section 1788.50 of the Civil Code is amended to read:1788.50. (a) As used in this title:(1) Debt buyer means a person or entity that is regularly engaged in the business of purchasing charged-off consumer debt or charged-off nonconsensual obligations to pay for collection purposes, whether it collects the debt or nonconsensual obligation to pay itself, hires a third party for collection, or hires an attorney-at-law for collection litigation. Debt buyer does not mean a person or entity that acquires a charged-off consumer debt or charged-off nonconsensual obligation to pay incidental to the purchase of a portfolio predominantly consisting of consumer debt or nonconsensual obligations to pay that has not been charged off.(2) Charged-off consumer debt means a consumer debt that has been removed from a creditors books as an asset and treated as a loss or expense.(3) Charged-off nonconsensual obligation to pay means a nonconsensual obligation to pay that has been removed from a debt owners books as an asset and treated as a loss or expense.(b) The acquisition by a check services company of the right to collect on a paper or electronic check instrument, including an Automated Clearing House item, that has been returned unpaid to a merchant does not constitute a purchase of delinquent consumer debt under this title.(c) Terms defined in Title 1.6C (commencing with Section 1788) shall apply to this title.(d) (1) This title shall apply to debt buyers with respect to all consumer debt sold or resold on or after January 1, 2014.(2) This title shall apply to debt buyers with respect to all nonconsensual obligations to pay that are sold or resold on or after January 1, 2019.SEC. 13. Section 1788.52 of the Civil Code is amended to read:1788.52. (a) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt or nonconsensual obligation to pay unless the debt buyer possesses the following information:(1) That the debt buyer is the sole owner of the debt or nonconsensual obligation to pay at issue or has authority to assert the rights of all owners of the debt or nonconsensual obligation to pay.(2) The debt balance, or nonconsensual obligation to pay balance, at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt or nonconsensual obligation to pay. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees.(3) The date of default or the date of the last payment.(4) The name and an address of the charge-off creditor at the time of charge off, and the charge-off creditors account number associated with the debt or nonconsensual obligation to pay. The charge-off creditors name and address shall be in sufficient form so as to reasonably identify the charge-off creditor.(5) The name and last known address of the debtor as they appeared in the charge-off creditors records prior to the sale of the debt or nonconsensual obligation to pay. If the debt was sold prior to January 1, 2014, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2013, shall be sufficient. If the nonconsensual obligation to pay was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(6) The names and addresses of all persons or entities that purchased the debt or nonconsensual obligation to pay after charge off, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each purchaser.(b) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt or nonconsensual obligation to pay unless the debt buyer has access to a copy of a contract or other document evidencing the debtors agreement to the debt or nonconsensual obligation to pay. If the claim is based on debt or a nonconsensual obligation to pay for which no signed contract or agreement exists, the debt buyer shall have access to a copy of a document provided to the debtor while the account was active, demonstrating that the debt or nonconsensual obligation to pay was incurred by the debtor. For a revolving credit account, the most recent monthly statement recording a purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement.(c) A debt buyer shall provide the information or documents identified in subdivisions (a) and (b) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information about or proof of the debt or nonconsensual obligation to pay. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the debt or nonconsensual obligation to pay until the debt buyer provides the debtor the information or documents described in subdivisions (a) and (b). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A debt buyer shall provide all debtors with whom it has contact an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) (1) A debt buyer shall include with its first written communication with the debtor in no smaller than 12-point type, a separate prominent notice that provides:You may request records showing the following: (1) that [insert name of debt buyer] has the right to seek collection of the debt or nonconsensual obligation to pay; debt; (2) the debt or nonconsensual obligation to pay balance, including an explanation of any interest charges and additional fees; (3) the date of default or the date of the last payment; (4) the name of the charge-off creditor and the account number associated with the debt or nonconsensual obligation to pay; debt; (5) the name and last known address of the debtor as it appeared in the charge-off creditors or debt buyers records prior to the sale of the debt or nonconsensual obligation to pay, debt, as appropriate; and (6) the names of all persons or entities that have purchased the debt or nonconsensual obligation to pay. debt. You may also request from us a copy of the contract or other document evidencing your agreement to the debt or nonconsensual obligation to pay. debt.A A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].(2) When collecting on a time-barred debt or nonconsensual obligation to pay where the debt or nonconsensual obligation to pay is not past the date for obsolescence provided for in Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):The law limits how long you can be sued on a debt or nonconsensual obligation to pay. debt. Because of the age of your debt or nonconsensual obligation to pay, debt, we will not sue you for it. If you do not pay thedebt or nonconsensual obligation to pay, debt, [insert name of debt buyer] may [continue to] report it to the credit reporting agencies as unpaid for as long as the law permits this reporting.(3) When collecting on a time-barred debt or nonconsensual obligation to pay where the debt or nonconsensual obligation to pay is past the date for obsolescence provided for in Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):The law limits how long you can be sued on adebt or nonconsensual obligation to pay. debt. Because of the age of your debt or nonconsensual obligation to pay, debt, we will not sue you for it, and we will not report it to any credit reporting agency.(e) If a language other than English is principally used by the debt buyer in the initial oral contact with the debtor, the notice required by subdivision (d) shall be provided to the debtor in that language within five working days.(f) In the event of a conflict between the requirements of subdivision (d) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.SEC. 14. Section 1788.54 of the Civil Code is amended to read:1788.54. (a) All settlement agreements between a debt buyer and a debtor shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a debt or nonconsensual obligation to pay shall provide, within 30 calendar days, a receipt or monthly statement, to the debtor. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account number, the name of the charge-off creditor, the account number issued by the charge-off creditor, and the remaining balance owing, if any. The receipt or statement may be provided electronically if the parties agree.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the debt or nonconsensual obligation to pay, shall provide, within 30 calendar days, a final statement that complies with subdivision (b). A debt buyer shall not sell an interest in a resolved debt or nonconsensual obligation to pay or any personal or financial information related to the resolved debt or nonconsensual obligation to pay.SEC. 15. Section 1788.56 of the Civil Code is amended to read:1788.56. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a consumer debt or nonconsensual obligation to pay if the applicable statute of limitations on the debt buyers claim has expired.SEC. 16. Section 1788.58 of the Civil Code is amended to read:1788.58. In an action brought by a debt buyer on a consumer debt or nonconsensual obligation to pay:(a) The complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying debt and the consumer transaction or transactions or nonconsensual obligation to pay from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the debt or nonconsensual obligation to pay at issue, or has authority to assert the rights of all owners of the debt or nonconsensual obligation to pay.(4) The debt balance, or nonconsensual obligation to pay balance, at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt or nonconsensual obligation to pay. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees.(5) The date of default or the date of the last payment.(6) The name and an address of the charge-off creditor at the time of charge off and the charge-off creditors account number associated with the debt or nonconsensual obligation to pay. The charge-off creditors name and address shall be in sufficient form so as to reasonably identify the charge-off creditor.(7) The name and last known address of the debtor as they appeared in the charge-off creditors records prior to the sale of the debt or nonconsensual obligation to pay. If the debt was sold prior to January 1, 2014, the debtors name and last known address as they appeared in the debt owners records on December 31, 2013, shall be sufficient. If the nonconsensual obligation to pay was sold prior to January 1, 2019, the debtors name and last known address as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons or entities that purchased the debt or nonconsensual obligation to pay after charge off, including the plaintiff debt buyer. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.52.(b) A copy of the contract or other document described in subdivision (b) of Section 1788.52 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.SEC. 17. Section 1788.60 of the Civil Code is amended to read:1788.60. (a) In an action initiated by a debt buyer, no default or other judgment may be entered against a debtor unless business records, authenticated through a sworn declaration, are submitted by the debt buyer to the court to establish the facts required to be alleged by paragraphs (3) to (8), inclusive, of subdivision (a) of Section 1788.58.(b) No default or other judgment may be entered against a debtor unless a copy of the contract or other document described in subdivision (b) of Section 1788.52, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a consumer debt or nonconsensual obligation to pay, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.SEC. 18. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 66 | | - | The people of the State of California do enact as follows:SECTION 1. Title 1.6C.6 (commencing with Section 1788.70) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 1.6C.6. FAIR DEBT COLLECTION PRACTICES FOR CERTAIN GOVERNMENT DEBTS. 1788.70. The following definitions apply for the purpose of this title:(a) The term government debt collection means any act or practice in connection with the collection of obligations to pay that are due and owing to a public agency.(b) The term government 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.(c) The term government debt means (1) unpaid parking penalties under Section 40220 of the Vehicle Code, (2) unpaid traffic tickets, or (3) unpaid street vendor tickets.(d) The term public agency means any city, county, district, other local authority or public body of or within this state.(e) The term person means a natural person, partnership, corporation, limited liability company, trust, estate, cooperative, association, or other similar entity.(f) The term debtor means a natural person from whom a debt collector seeks to collect government debt that is due and owing or alleged to be due and owing from the person.(g) 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.1788.71. A government debt collector shall not collect or attempt to collect a government debt under this title by means any 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, the reputation, or the property of any person.(b) The threat that the failure to pay a government debt will result in an accusation that the debtor has committed a crime if the 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 government debt, that the government 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 government debt with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the government debt.(e) The threat to any person that nonpayment of a government 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 or payments of the debtor, unless that action is, in fact, contemplated by the government debt collector and permitted by law.(f) The threat that the failure to pay a government debt will result in contacting immigration enforcement.(g) The threat to take any action against the debtor that is prohibited by this title.1788.72. A government debt collector shall not collect, or attempt to collect, a government debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity and the identity of the collection agency the caller represents.(c) Causing expense to any person for long distance telephone calls, telegram fees, or charges for other similar communications by misrepresenting to the person the purpose of the telephone call, telegram, or similar communication.(d) Causing a telephone to ring repeatedly or continuously to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, so frequently as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.73. A government debt collector shall not collect or attempt to collect a government debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the government debt unless that communication is necessary to the collection of the government debt, or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the government debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishment of the debtors wages after judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days, and shall be made only as many times as is necessary for the collection of the government debt. Communications to a debtors employer regarding a government 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a government debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, prior to obtaining judgment against the debtor, except when the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of an obligation to pay a government debt, commonly known as deadbeat lists, or advertising government debt for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the obligation to pay, or the debtor other than the name, address, and telephone number of the debtor and the debt collector, and that is intended both to be seen by any other person, and also to embarrass the debtor.1788.74. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices:(a) Any communication with the debtor other than in the name either of the debt collector or the public agency 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 the communication is by an attorney or counselor at law, or has been approved or authorized by an attorney or counselor at law.(d) The representation that the government debt collector is vouched for, bonded by, affiliated with, or is an instrumentality, agent, or official of any federal, state, or local government, or of any agency of federal, state, or local government, unless the collector is actually working on behalf of the particular governmental agency in question, and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the government debt may be increased by the addition of attorneys fees, investigation fees, service fees, penalties, finance charges, or other charges, fees, or penalties, if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) Any representation that information concerning a debtors failure or alleged failure to pay a government debt has been, or may be, referred to a consumer reporting agency.(g) The false representation that a government 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 government debt is made.(k) The false representation that a government debt has been, is about to be, or will be sold, assigned, or referred to a government debt collector for collection.(l) Any communication by a collection agency to a debtor demanding money unless the claim for government debt is actually assigned to the collection agency.1788.75. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a government debt that has been discharged in bankruptcy without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or any other expense incurred by the debt collector in the collection of the government debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the government debt when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the government debt, and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the government debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the obligation in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.1788.76. It is unlawful, with respect to attempted collection of a government debt, for a government debt collector or attorney to send a communication that simulates legal or judicial process, or that gives the appearance of being authorized, issued, or approved by a public 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.1788.77. Notwithstanding any other provision of this title, a government debt collector collecting or attempting to collect a government debt must comply with the following provisions: (a) Comply with all federal law regarding collection of government debt.(b) A government debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A government debt collector shall not state that such debtor owes any debt.(3) A government debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the government debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.(4) A government debt collector shall not communicate by postcard.(5) A government debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the government debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the government debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the government debt collector.(c) (1) In any communication in connection with government debt collection, a government debt collector shall not, without the prior consent of the debtor given directly to the government debt collector or the express permission of a court of competent jurisdiction, a government debt collector may not communicate with a debtor in connection with the collection of any government debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a government debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the government debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the government debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the government debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the government debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a government debt collector may not communicate, in connection with the collection of any government debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the government debt collector.(3) When ceasing communication with a debtor, the government debt collector shall do all of the following:(A) Advise the consumer that the government debt collectors further efforts are being terminated.(B) Notify the debtor that the government debt collector or creditor may invoke specified remedies which are ordinarily invoked by such government debt collector or public agency.(C) Where applicable, notify the debtor that the government debt collector or public agency intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A government debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay government debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any government debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the government debt collector or public agency intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information that is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication that simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the government debt collector is attempting to collect a government debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a government debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A government debt collector shall not use unfair or unconscionable means to collect or attempt to collect any government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a government debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the government debt collectors intent to deposit any check or instrument not more than 10 business days nor less than three business days prior to any deposit.(3) The solicitation by a government debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a government debt by postcard.(8) Using any language or symbol, other than the government debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any government debt, a government debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the public agency or other entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the government debt collector.(D) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the government debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the government debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the government debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any government debt collector with respect to such debts, the government debt collector shall not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any government debt collector who brings any legal action on a government debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring that action only in a judicial district or similar legal entity in which the real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the government debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes such public agency or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A government debt collector shall not be held liable in any action brought under this section if the government debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.78. (a) A government debt collectors initial communication with a debtor in connection with the collection of any government debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the government debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the government debt, or any portion thereof, the government debt will be assumed to be valid by the government debt collector.(4) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the government debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the government debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the government debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the public agency with which the government debt originated, if different from the current holder of the government debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated, (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model, and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert government debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to ____.](b) If the debtor notifies the government debt collector in writing within the 30-day period described in subdivision (a) that the government debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the government debt collector obtains verification of the government debt or a copy of a judgment, or the name and address of the public agency with which the debt originated, and a copy of such verification or judgment, or name and address of the public agency with which the debt originated, is mailed to the debtor by the government debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the government debt collector in writing that the government debt, or any portion of the government debt, is disputed or that the debtor requests the name and address of the public agency with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the government debt or request the name and address of the public agency with which the debt originated.(c) A government debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the government debt collector cannot provide the information or documents within 15 calendar days, the government debt collector shall cease all collection of the debt until the government debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A government debt collector shall provide all debtors of government debt with whom it has contact an active postal address to which these requests can be sent. A government debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a government debt under this section shall not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice that does not relate to the collection of a government debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with government debt collection for purposes of this section.1788.79. A government debt collector shall provide the following information in its subsequent communication with a debtor with respect to a government debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) of Section 1788.78 in no less than 12-point type:(a) The balance of the government debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the public agency with which the government debt originated. This subdivision shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the government debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the public agency with which the debt originated, or by that public agencys agent or assignee if applicable.(b) The name, address, and telephone number of the public agency with which the government debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the government debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the government debt to the debt collector or the last known name and address of the debtor known to the government debt collector.(e) The name, address, and telephone number of all persons that purchased the governmental debt if applicable.(f) The statement that: You may contact the public agency with which the government debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that public agency.(g) If the government debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the government debt.(h) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the government debt and identifies the date of the event or events that created the government debt, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in such documents.(i) That the government debt collector cannot report the government debt to a consumer reporting agency.1788.80. The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ________ or write to _________.](a) In the event that a government debt collector or person as defined in Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that government debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(b) Under this title, government debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(c) Under this title, government debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(d) There shall be no separate charge for translation services.(e) The California Association of Collectors may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Association of Collectors may make these translated materials available on its Internet Web sites, free of charge, within one year and three months of the operative date of this section.1788.81. (a) A government debt collector who violates this title with respect to any debtor shall be liable to that debtor only in an individual action, and its 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) A government 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 its additional liability therein to that debtor shall be for a penalty in such amount as the court may allow that 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 attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A government debt collector shall have no civil liability under this title if, within 15 days after discovering a violation that 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 government debt collector shall have no civil liability, to which the debt collector might otherwise be subject for a violation of this title, if the government 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) An action under this section may be brought in any appropriate court of competent jurisdiction in an individual capacity and the statute of limitations shall be one year from the date of the occurrence of the violation.SEC. 2. Title 1.6C.7 (commencing with Section 1788.90) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. 1788.90. The following definitions apply for the purpose of this title:(a) The term towing debt collection means any act or practice in connection with the collection of towing debt.(b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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.(c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from:(1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code.(2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1.(3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims.(4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims.(d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment.(e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person.(f) The term lien has the same meaning as in Section 2872.(g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation.1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 towing debt will result in an accusation that the debtor has committed a crime if the 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 towing 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 towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services.(e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law.(f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement.(g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code.(h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law.(i) The threat to take any action against the debtor that is prohibited by this title.1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents.(c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication.(d) Causing a telephone to ring repeatedly in order to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor.1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 similar written instruments bearing the name of the attorney or counselor at law, unless the communication is by an attorney or counselor at law or has been approved or authorized by an attorney or counselor at law.(d) The representation that the 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 working on behalf of the particular governmental agency in question and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the towing debt may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges, fees, or penalties if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) The representation that information concerning a debtors failure or alleged failure to pay a towing debt has been, or may 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 towing debt is made.(k) The false representation that a towing debt has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money for a towing debt unless the claim is actually assigned to the collection agency.1788.95. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a towing debt that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the towing debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the towing debt, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the towing debt and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the towing debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the towing debt in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.(d) Accepting, collecting, or attempting to collect from the debtor the whole or any part of the towing debt that was discharged or otherwise satisfied, including by operation of law under Sections 9406 and 9608 of the Commercial Code, Section 3068.1 of the Civil Code, or Section 22851 of the Vehicle Code.1788.96. It is unlawful, with respect to attempted collection of a towing debt, for a debt collector 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.1788.97. (a) A towing debt collectors initial communication with a debtor in connection with the collection of any towing debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the towing debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the towing debt, or any portion thereof, the towing debt will be assumed to be valid by the towing debt collector.(4) A statement that if the debtor notifies the towing debt collector in writing within the 30-day period that the towing debt, or any portion thereof, is disputed, the towing debt collector will obtain verification of the towing debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the towing debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the public agency with which the towing debt originated, if different from the current holder of the towing debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert towing debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to____.](b) If the debtor notifies the towing debt collector in writing within the 30-day period described in subdivision (a) that the towing debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the towing debt or a copy of a judgment, or the name and address of the entity with which the debt originated, and a copy of the verification or judgment, or the name and address of the entity with which the debt originated, is mailed to the debtor by the towing debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the towing debt collector in writing that the towing debt, or any portion of the towing debt, is disputed or that the debtor requests the name and address of the entity with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the towing debt or request the name and address of the entity with which the debt originated.(c) A towing debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the towing debt collector cannot provide the information or documents within 15 calendar days, the towing debt collector shall cease all collection of the debt until the towing debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A towing debt collector shall provide all debtors of towing debt with whom it has contact an active postal address to which these requests can be sent. A towing debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a towing debt under this section may not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice which does not relate to the collection of a towing debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with towing debt collection for purposes of this section.1788.98. A towing debt collector shall provide the following information in its subsequent communication with a debtor with respect to a towing debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) in no less than 10-point font:(a) The balance of the towing debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the entity with which the towing debt originated. This section shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the towing debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the entity with which the debt originated, or by that entitys agent or assignee, if applicable.(b) The name, address and phone number of the public agency with which the towing debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the towing debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the entitys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the towing debt collector.(e) The name, address and telephone number of all persons that purchased the towing debt if applicable.(f) The statement that: You may contact the entity with which the towing debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that entity.(g) That the debtor may contact the entity with which the towing debt originated to seek the existence of and his or her eligibility for any repayment plan assistance offered by that entity.(h) If the towing debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the towing debt.(i) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code, or, if a copy of the documents are unavailable, a statement providing any available information that would customarily be included in such documents.(j) That the towing debt collector cannot report the government debt to a consumer reporting agency.(k) That the towing debt collector cannot sue the debtor for the towing debt if more than one year has passed since the towing debt arose.1788.99. The following notification shall be placed in no smaller than 12-point type on the notices required by this title.(a) The towing fees and access notice.(b) Notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code.[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ .](c) In the event that a towing debt collector or person, as defined in Section 1788.90, has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that towing debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(d) Under this title, towing debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(e) Under this title, towing debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(f) There shall be no separate charge for translation services.(g) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.1788.100. (a) A towing debt collector who violates Sections 1788.90 to 1788.98, inclusive, with respect to any debtor shall be liable to that debtor only in an individual action, and the debt collectors 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) A towing 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 its 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 the costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A towing debt collector shall have no civil liability under this title if, within 15 days 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 towing debt collector shall have no civil liability to which the debt collector might otherwise be subject to for a violation of this title, if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adopted to avoid the violation.(f) An 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) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.(h) Any intentional violation of the provisions of this title by the debtor may be raised as a defense by the towing debt collector, if the violation is pertinent or relevant to any claim or action brought against the towing debt collector by or on behalf of the debtor.1788.101. (a) A debt buyer that purchases a towing debt from a person shall not make any written statement to a debtor in an attempt to collect the towing debt unless the debt buyer possesses all of the following information:(1) That the debt buyer is the sole owner of the towing debt at issue or has the authority to assert the rights of all owners.(2) The balance of the towing debt and an explanation of the amount, nature, and reason for all interest, fees, charges, or penalties, if any, imposed by the person from which the towing debt originated, its agent, its assignee, or by any subsequent purchaser of the towing debt, if applicable.(3) The name, address, and telephone number of the person from whom the towing debt originated.(4) The account or any citation number associated with the towing debt by the person from whom the towing debt originated, if such account or citation number exist.(5) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the debt collector.(6) The names and addresses of all persons who purchased the towing debt, if applicable. The names and addresses shall be in sufficient form so as to reasonably identify each person or entity that purchased the towing debt.(7) A copy of the original invoice, ticket, judgment, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including any notices under Sections 22852 and 40220 of the Vehicle Code, and under Sections 3071 to 3072 of the Civil Code, if applicable, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in those documents.(8) If the towing debt stems from the use, removal, or storage of a vehicle, the make, model, and if available, the license plate number of the vehicle shall be provided.(b) In an action brought by a debt buyer on a towing debt, the complaint shall contain the items listed in paragraphs (1) to (8), inclusive, of subdivision (a) and attach a copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt required by paragraph (7) of subdivision (a).(c) The requirements of this section shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.(d) This section shall not apply to towing debts that arise from fraud.(e) A debt buyer shall provide the information or documents identified in subdivisions (a) and (e) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the towing debt or proof of the towing debt. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the towing debt until the debt buyer provides the debtor the information or documents described in subdivision (a). A debt buyer shall provide all debtors with whom it has contact regarding a towing debt, an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(f) A debt buyer of a towing debt shall include with its first written communication with the debtor, in no smaller than 12-point type, a separate notice that provides all of the following language:(1) You may request records showing the following: (A) that [insert name of debt buyer] has the right to seek collection of the towing debt, (B) the debt balance, including an explanation of any interest charges, additional fees, or penalties, if any, (C) the date of the event that created debt, (D) the name of the entity with which the towing debt originated, and the citation, account, or identification number associated with the debt, (E) the name and last known address of the debtor as it appeared in the originating agencys or entitys records prior to the sale of the towing debt, as appropriate, and (6) the names of all persons or entities that have purchased the debt. You may also request from us the date of the events that created the towing debt, and a brief description of the event that created the towing debt.A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].We cannot report this towing debt to a creditor reporting agency.(2) Notice of assignment as provided under Section 3069 of the Vehicle Code.(3) Notice of assignment as provided under subparagraph (A) of paragraph (2) of subdivision (a) of Section 40220 of the Vehicle Code.(4) When collecting on a time-barred towing debt:The law limits how long you can be sued on a debt. Because of the age of your debt, we cannot sue you for it. (g) In the event of a conflict between the requirements of subdivision (g) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.(h) Notwithstanding any provision of law to the contrary, nothing shall prevent a person from selling a towing debt to a debtor buyer with all of the information required in subdivision (a) of Section 1789.1 at the point of purchase.(i) This section shall apply to debt buyers with respect to all towing debt purchased on or after January 1, 2019.1788.102. (a) All settlement agreements between a debt buyer and a debtor concerning towing debt shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a towing debt shall provide to the debtor, within 30 calendar days, a receipt, or monthly statement. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account, citation, or other identification number, the name of the person from whom the towing debt originated, the account, citation or other identification number associated with the towing debt, and the remaining balance owing, if any. The receipt or statement may be provided electronically.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the towing debt, shall provide, within 30 calendar days, a final statement to the debtor that complies with subdivision (b). Once a debt buyer has accepted a payment as payment in full, or as a full and final compromise, of the towing debt, the debt buyer shall not sell an interest in a resolved towing debt, or any personal or financial information related to the resolved towing debt.1788.103. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a towing debt if the applicable statute of limitations on the debt buyers claim has expired.1788.104. (a) In an action brought by a debt buyer on a towing debt the complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying towing debt and a description of the events from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the towing debt at issue, or has authority to assert the rights of all owners of the towing debt.(4) The towing debt balance and an explanation of the amount, nature, and reason for all interest, fees, or penalties, if any, imposed by the debt buyer or any entity which purchased the towing debt before the debt buyer. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the balance at time of acquisition of the debt, the total of any postacquisition interest, and the total of any postacquisition fees.(5) The date of the event or events that created the towing debt.(6) The name and an address of the person from which the towing debt originated, and the account, violation, or other identification number associated with the towing debt. The name and address shall be in sufficient form so as to reasonably identify the person from which the towing debt originated.(7) The name and last known address of the debtor as they appeared in the records of the person from which the towing debt originated prior to the sale of the towing debt. If the towing debt was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons that purchased the towing debt which were not the person from which the towing debt originated, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.100.(b) A copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt described in subdivision (b) of Section 1788.100 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.1788.105. (a) In an action initiated by a debt buyer to collect a towing debt, no default or other judgment may be entered against a debtor unless records, authenticated through a sworn declaration by the debt buyer, are submitted by the debt buyer to the court to establish the facts required to be alleged by subdivision (b) of Section 1788.103.(b) No default or other judgment may be entered against a debtor unless a copy of the document described in subdivision (b) of Section 1788.103, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a towing debt, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.1788.106. (a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:(A) Six years after entry of the default or default judgment against the person.(B) One hundred eighty days of the first actual notice of the action.(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.(B) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victims Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she 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 associated with the judgment.(C) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the towing debt.(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.(d) This section shall apply to a default or default judgment entered on or after January 1, 2019, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.(e) This section shall not limit the equitable authority of the court or other available remedies under law.1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following:(1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person.(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).(b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer.(c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court.(2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith.(d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected.(e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.(f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation.(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: (a) Comply with all federal law regarding collection of towing debt.(b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A towing debt collector shall not state that such debtor owes any debt.(3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information.(4) A towing debt collector shall not communicate by postcard.(5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector.(c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector.(3) When ceasing communication with a debtor, the towing debt collector shall do all of the following:(A) Advise the consumer that the towing debt collectors further efforts are being terminated.(B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity.(C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any towing debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit.(3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a towing debt by postcard.(8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector.(D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable.SEC. 3. Article 3 (commencing with Section 22857) is added to Chapter 10 of Division 11 of the Vehicle Code, to read: Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both.(b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections:(c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :](d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome.(g) There shall be no separate charge for translation services.(h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow.(b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith.(c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner.(d) 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.SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 53 | + | The people of the State of California do enact as follows:SECTION 1. Section 1788.1 of the Civil Code is amended to read: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 nonconsensual obligations to pay, and to require debtors to act fairly in entering into and honoring debts, as specified in this title.SEC. 2. Section 1788.2 of the Civil Code is amended to read: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 and nonconsensual obligations to pay.(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 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 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 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 association, or other similar entity.(h) Except as provided in Section 1788.18, the term debtor means a natural person from whom a debt collector seeks to collect a consumer debt or nonconsensual obligation to pay that is due and owing or alleged to be due and owing from the 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 oral, or other communication of any information by a consumer reporting agency bearing on a consumers creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics characteristics, or mode of living that 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 consumers 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 the 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 who, 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 that uses any means or facility for the purpose of preparing or furnishing consumer credit reports.(l) The term lien has the same meaning as in Section 2872.(m) The term nonconsensual obligation to pay means (1) the charges underlying a lien created by operation of law under Section 2881, including towing and storage charges under Section 22851 of the Vehicle Code; (2) unpaid parking penalties under Section 40220 of the Vehicle Code; or (3) past due residential rent and associated late fees.SEC. 3. Section 1788.10 of the Civil Code is amended to read:1788.10. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay 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 or nonconsensual obligation to pay will result in an accusation that the debtor has committed a crime if the 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 or nonconsensual obligation to pay that 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 or nonconsensual obligation to pay, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the consumer debt or nonconsensual obligation to pay;(e) The threat to any person that nonpayment of the consumer debt or nonconsensual obligation to pay 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 that 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 that is prohibited by this title.SEC. 4. Section 1788.11 of the Civil Code is amended to read:1788.11. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, provided that an employee of a licensed collection agency may identify himself or herself by using his or her registered alias name as long as he or she correctly identifies the agency he or she represents.(c) Causing expense to any person for long distance telephone calls, telegram fees, or charges for other similar communications, by misrepresenting to the person the purpose of the telephone call, telegram, or similar communication.(d) Causing a telephone to ring repeatedly or continuously to annoy the person called.(e) Communicating, by telephone or in person, with the debtor so frequently as to be unreasonable and to constitute an a harassment to the debtor under the circumstances.SEC. 5. Section 1788.12 of the Civil Code is amended to read:1788.12. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices:(a) Communicating with the debtors employer regarding the debtors consumer debt or nonconsensual obligation to pay unless that communication is necessary to the collection of the debt or nonconsensual obligation to pay or unless the debtor or his attorney has consented in writing to the communication. A communication is necessary to the collection of the debt or nonconsensual obligation to pay only if it is made for the purposes of verifying the debtors employment, locating the debtor, or effecting garnishment, after judgment, of the debtors 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 the 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 or nonconsensual obligation to pay. Communications to a debtors employer regarding a debt or nonconsensual obligation to pay 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a consumer debt or nonconsensual obligation to pay to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, prior to obtaining a judgment against the debtor, unless the purpose of the communication is to locate the debtor, or if the debtor or his attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a consumer debt or nonconsensual obligation to pay, commonly known as deadbeat lists, lists, or advertising any consumer debt or nonconsensual obligation to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the consumer debt or nonconsensual obligation to pay, or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that 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 nonconsensual obligation to pay, or the debtor to a consumer reporting agency or to any other person reasonably believed to have a legitimate business need for the information shall not be deemed to violate this title.SEC. 6. Section 1788.13 of the Civil Code is amended to read:1788.13. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay 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 the communication is by an attorney or counselor at law or has been approved or authorized by an 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 the agency in the debt collection matter.(e) The false representation that the consumer debt or nonconsensual obligation to pay may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges if, in fact, those fees or charges may not legally be added to the existing obligation.(f) The false representation that information concerning a debtors failure or alleged failure to pay a consumer debt or nonconsensual obligation to pay 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 or nonconsensual obligation to pay is made.(k) The false representation that a consumer debt or nonconsensual obligation to pay has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money unless the claim is actually assigned to the collection agency.SEC. 7. Section 1788.14 of the Civil Code is amended to read:1788.14. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices:(a) Obtaining an affirmation from a debtor of a consumer debt or nonconsensual obligation to pay that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the consumer debt or nonconsensual obligation to pay, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor with regard to the consumer debt or nonconsensual obligation to pay, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the consumer debt or nonconsensual obligation to pay and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the consumer debt or nonconsensual obligation to pay be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the obligation in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.SEC. 8. Section 1788.15 of the Civil Code is amended to read:1788.15. (a) No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of judicial proceedings if 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 or nonconsensual obligation to pay 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 nonconsensual obligation to pay or the county in which the debtor resides at the time the proceedings are instituted, or resided at the time the debt or nonconsensual obligation to pay was incurred.SEC. 9. Section 1788.16 of the Civil Code is amended to read:1788.16. It is unlawful, with respect to attempted collection of a consumer debt or nonconsensual obligation to pay, for a debt collector, creditor, or an attorney, to send a communication that simulates legal or judicial process or that gives the appearance of being authorized, issued, or approved by a governmental agency or attorney if 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.SEC. 10. Section 1788.17 of the Civil Code is amended to read:1788.17. Notwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt or nonconsensual obligation to pay 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 persons principal. The references to federal codes in this section refer to those codes as they read January 1, 2001.SEC. 11. 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 or nonconsensual obligation to pay being collected by the debt collector.(2) The debtors written statement that the debtor claims to be the victim of identity theft with respect to the specific debt or nonconsensual obligation to pay 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 Commissions Affidavit of Identity Theft.(2) A written statement that contains the content of the Identity Theft Victims 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 debtors allegation of identity theft with respect to the debt or nonconsensual obligation to pay in question:(A) A statement that the debtor is a victim of identity theft.(B) A copy of the debtors drivers 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 or nonconsensual obligation to pay.(F) Any available correspondence disputing the debt or nonconsensual obligation to pay after transaction information has been provided to the debtor.(G) Documentation of the residence of the debtor at the time of the alleged debt or nonconsensual obligation to pay pay. 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 or nonconsensual obligation to pay 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 debtors name or personal information for incurring the debt or nonconsensual obligation to pay.(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, andcontain 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 debtors 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 Commissions 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 or nonconsensual obligation to pay in question. The debt collectors 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 collectors 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 or nonconsensual obligation to pay is valid or invalid, or that the debtor is liable or not liable for the debt or nonconsensual obligation to pay, 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 debtors 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 or a nonconsensual obligation to pay 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.SEC. 12. Section 1788.50 of the Civil Code is amended to read:1788.50. (a) As used in this title:(1) Debt buyer means a person or entity that is regularly engaged in the business of purchasing charged-off consumer debt or charged-off nonconsensual obligations to pay for collection purposes, whether it collects the debt or nonconsensual obligation to pay itself, hires a third party for collection, or hires an attorney-at-law for collection litigation. Debt buyer does not mean a person or entity that acquires a charged-off consumer debt or charged-off nonconsensual obligation to pay incidental to the purchase of a portfolio predominantly consisting of consumer debt or nonconsensual obligations to pay that has not been charged off.(2) Charged-off consumer debt means a consumer debt that has been removed from a creditors books as an asset and treated as a loss or expense.(3) Charged-off nonconsensual obligation to pay means a nonconsensual obligation to pay that has been removed from a debt owners books as an asset and treated as a loss or expense.(b) The acquisition by a check services company of the right to collect on a paper or electronic check instrument, including an Automated Clearing House item, that has been returned unpaid to a merchant does not constitute a purchase of delinquent consumer debt under this title.(c) Terms defined in Title 1.6C (commencing with Section 1788) shall apply to this title.(d) (1) This title shall apply to debt buyers with respect to all consumer debt sold or resold on or after January 1, 2014.(2) This title shall apply to debt buyers with respect to all nonconsensual obligations to pay that are sold or resold on or after January 1, 2019.SEC. 13. Section 1788.52 of the Civil Code is amended to read:1788.52. (a) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt or nonconsensual obligation to pay unless the debt buyer possesses the following information:(1) That the debt buyer is the sole owner of the debt or nonconsensual obligation to pay at issue or has authority to assert the rights of all owners of the debt or nonconsensual obligation to pay.(2) The debt balance, or nonconsensual obligation to pay balance, at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt or nonconsensual obligation to pay. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees.(3) The date of default or the date of the last payment.(4) The name and an address of the charge-off creditor at the time of charge off, and the charge-off creditors account number associated with the debt or nonconsensual obligation to pay. The charge-off creditors name and address shall be in sufficient form so as to reasonably identify the charge-off creditor.(5) The name and last known address of the debtor as they appeared in the charge-off creditors records prior to the sale of the debt or nonconsensual obligation to pay. If the debt was sold prior to January 1, 2014, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2013, shall be sufficient. If the nonconsensual obligation to pay was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(6) The names and addresses of all persons or entities that purchased the debt or nonconsensual obligation to pay after charge off, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each purchaser.(b) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt or nonconsensual obligation to pay unless the debt buyer has access to a copy of a contract or other document evidencing the debtors agreement to the debt or nonconsensual obligation to pay. If the claim is based on debt or a nonconsensual obligation to pay for which no signed contract or agreement exists, the debt buyer shall have access to a copy of a document provided to the debtor while the account was active, demonstrating that the debt or nonconsensual obligation to pay was incurred by the debtor. For a revolving credit account, the most recent monthly statement recording a purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement.(c) A debt buyer shall provide the information or documents identified in subdivisions (a) and (b) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information about or proof of the debt or nonconsensual obligation to pay. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the debt or nonconsensual obligation to pay until the debt buyer provides the debtor the information or documents described in subdivisions (a) and (b). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A debt buyer shall provide all debtors with whom it has contact an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) (1) A debt buyer shall include with its first written communication with the debtor in no smaller than 12-point type, a separate prominent notice that provides:You may request records showing the following: (1) that [insert name of debt buyer] has the right to seek collection of the debt or nonconsensual obligation to pay; debt; (2) the debt or nonconsensual obligation to pay balance, including an explanation of any interest charges and additional fees; (3) the date of default or the date of the last payment; (4) the name of the charge-off creditor and the account number associated with the debt or nonconsensual obligation to pay; debt; (5) the name and last known address of the debtor as it appeared in the charge-off creditors or debt buyers records prior to the sale of the debt or nonconsensual obligation to pay, debt, as appropriate; and (6) the names of all persons or entities that have purchased the debt or nonconsensual obligation to pay. debt. You may also request from us a copy of the contract or other document evidencing your agreement to the debt or nonconsensual obligation to pay. debt.A A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].(2) When collecting on a time-barred debt or nonconsensual obligation to pay where the debt or nonconsensual obligation to pay is not past the date for obsolescence provided for in Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):The law limits how long you can be sued on a debt or nonconsensual obligation to pay. debt. Because of the age of your debt or nonconsensual obligation to pay, debt, we will not sue you for it. If you do not pay thedebt or nonconsensual obligation to pay, debt, [insert name of debt buyer] may [continue to] report it to the credit reporting agencies as unpaid for as long as the law permits this reporting.(3) When collecting on a time-barred debt or nonconsensual obligation to pay where the debt or nonconsensual obligation to pay is past the date for obsolescence provided for in Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):The law limits how long you can be sued on adebt or nonconsensual obligation to pay. debt. Because of the age of your debt or nonconsensual obligation to pay, debt, we will not sue you for it, and we will not report it to any credit reporting agency.(e) If a language other than English is principally used by the debt buyer in the initial oral contact with the debtor, the notice required by subdivision (d) shall be provided to the debtor in that language within five working days.(f) In the event of a conflict between the requirements of subdivision (d) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.SEC. 14. Section 1788.54 of the Civil Code is amended to read:1788.54. (a) All settlement agreements between a debt buyer and a debtor shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a debt or nonconsensual obligation to pay shall provide, within 30 calendar days, a receipt or monthly statement, to the debtor. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account number, the name of the charge-off creditor, the account number issued by the charge-off creditor, and the remaining balance owing, if any. The receipt or statement may be provided electronically if the parties agree.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the debt or nonconsensual obligation to pay, shall provide, within 30 calendar days, a final statement that complies with subdivision (b). A debt buyer shall not sell an interest in a resolved debt or nonconsensual obligation to pay or any personal or financial information related to the resolved debt or nonconsensual obligation to pay.SEC. 15. Section 1788.56 of the Civil Code is amended to read:1788.56. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a consumer debt or nonconsensual obligation to pay if the applicable statute of limitations on the debt buyers claim has expired.SEC. 16. Section 1788.58 of the Civil Code is amended to read:1788.58. In an action brought by a debt buyer on a consumer debt or nonconsensual obligation to pay:(a) The complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying debt and the consumer transaction or transactions or nonconsensual obligation to pay from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the debt or nonconsensual obligation to pay at issue, or has authority to assert the rights of all owners of the debt or nonconsensual obligation to pay.(4) The debt balance, or nonconsensual obligation to pay balance, at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt or nonconsensual obligation to pay. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees.(5) The date of default or the date of the last payment.(6) The name and an address of the charge-off creditor at the time of charge off and the charge-off creditors account number associated with the debt or nonconsensual obligation to pay. The charge-off creditors name and address shall be in sufficient form so as to reasonably identify the charge-off creditor.(7) The name and last known address of the debtor as they appeared in the charge-off creditors records prior to the sale of the debt or nonconsensual obligation to pay. If the debt was sold prior to January 1, 2014, the debtors name and last known address as they appeared in the debt owners records on December 31, 2013, shall be sufficient. If the nonconsensual obligation to pay was sold prior to January 1, 2019, the debtors name and last known address as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons or entities that purchased the debt or nonconsensual obligation to pay after charge off, including the plaintiff debt buyer. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.52.(b) A copy of the contract or other document described in subdivision (b) of Section 1788.52 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.SEC. 17. Section 1788.60 of the Civil Code is amended to read:1788.60. (a) In an action initiated by a debt buyer, no default or other judgment may be entered against a debtor unless business records, authenticated through a sworn declaration, are submitted by the debt buyer to the court to establish the facts required to be alleged by paragraphs (3) to (8), inclusive, of subdivision (a) of Section 1788.58.(b) No default or other judgment may be entered against a debtor unless a copy of the contract or other document described in subdivision (b) of Section 1788.52, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a consumer debt or nonconsensual obligation to pay, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.SEC. 18. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 160 | | - | 1788.74. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices: |
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| 161 | | - | |
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| 162 | | - | (a) Any communication with the debtor other than in the name either of the debt collector or the public agency on whose behalf the debt collector is acting. |
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| 163 | | - | |
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| 164 | | - | (b) Any false representation that any person is an attorney or counselor at law. |
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| 165 | | - | |
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| 166 | | - | (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 the communication is by an attorney or counselor at law, or has been approved or authorized by an attorney or counselor at law. |
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| 167 | | - | |
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| 168 | | - | (d) The representation that the government debt collector is vouched for, bonded by, affiliated with, or is an instrumentality, agent, or official of any federal, state, or local government, or of any agency of federal, state, or local government, unless the collector is actually working on behalf of the particular governmental agency in question, and is acting on behalf of that agency in the debt collection matter. |
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| 169 | | - | |
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| 170 | | - | (e) The false representation that the government debt may be increased by the addition of attorneys fees, investigation fees, service fees, penalties, finance charges, or other charges, fees, or penalties, if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation. |
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| 171 | | - | |
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| 172 | | - | (f) Any representation that information concerning a debtors failure or alleged failure to pay a government debt has been, or may be, referred to a consumer reporting agency. |
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| 173 | | - | |
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| 174 | | - | (g) The false representation that a government debt collector is a consumer reporting agency. |
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| 175 | | - | |
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| 176 | | - | (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. |
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| 177 | | - | |
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| 178 | | - | (i) The false representation of the true nature of the business or services being rendered by the debt collector. |
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| 179 | | - | |
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| 180 | | - | (j) The false representation that a legal proceeding has been, is about to be, or will be instituted unless payment of a government debt is made. |
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| 181 | | - | |
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| 182 | | - | (k) The false representation that a government debt has been, is about to be, or will be sold, assigned, or referred to a government debt collector for collection. |
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| 183 | | - | |
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| 184 | | - | (l) Any communication by a collection agency to a debtor demanding money unless the claim for government debt is actually assigned to the collection agency. |
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| 185 | | - | |
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| 186 | | - | 1788.75. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a government debt that has been discharged in bankruptcy without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or any other expense incurred by the debt collector in the collection of the government debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the government debt when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the government debt, and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the government debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the obligation in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry. |
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| 187 | | - | |
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| 188 | | - | |
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| 189 | | - | |
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| 190 | | - | 1788.75. A government debt collector shall not collect or attempt to collect a government debt under this title by means of any of the following practices: |
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| 191 | | - | |
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| 192 | | - | (a) Obtaining an affirmation from a debtor of a government debt that has been discharged in bankruptcy without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation. |
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| 193 | | - | |
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| 194 | | - | (b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or any other expense incurred by the debt collector in the collection of the government debt, except as permitted by law. |
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| 195 | | - | |
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| 196 | | - | (c) Initiating communications, other than statements of account, with the debtor in regard to the government debt when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the government debt, and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the government debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the obligation in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry. |
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| 197 | | - | |
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| 198 | | - | 1788.76. It is unlawful, with respect to attempted collection of a government debt, for a government debt collector or attorney to send a communication that simulates legal or judicial process, or that gives the appearance of being authorized, issued, or approved by a public 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. |
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| 199 | | - | |
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| 200 | | - | |
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| 201 | | - | |
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| 202 | | - | 1788.76. It is unlawful, with respect to attempted collection of a government debt, for a government debt collector or attorney to send a communication that simulates legal or judicial process, or that gives the appearance of being authorized, issued, or approved by a public 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. |
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| 203 | | - | |
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| 204 | | - | 1788.77. Notwithstanding any other provision of this title, a government debt collector collecting or attempting to collect a government debt must comply with the following provisions: (a) Comply with all federal law regarding collection of government debt.(b) A government debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A government debt collector shall not state that such debtor owes any debt.(3) A government debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the government debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.(4) A government debt collector shall not communicate by postcard.(5) A government debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the government debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the government debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the government debt collector.(c) (1) In any communication in connection with government debt collection, a government debt collector shall not, without the prior consent of the debtor given directly to the government debt collector or the express permission of a court of competent jurisdiction, a government debt collector may not communicate with a debtor in connection with the collection of any government debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a government debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the government debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the government debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the government debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the government debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a government debt collector may not communicate, in connection with the collection of any government debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the government debt collector.(3) When ceasing communication with a debtor, the government debt collector shall do all of the following:(A) Advise the consumer that the government debt collectors further efforts are being terminated.(B) Notify the debtor that the government debt collector or creditor may invoke specified remedies which are ordinarily invoked by such government debt collector or public agency.(C) Where applicable, notify the debtor that the government debt collector or public agency intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A government debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay government debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any government debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the government debt collector or public agency intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information that is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication that simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the government debt collector is attempting to collect a government debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a government debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A government debt collector shall not use unfair or unconscionable means to collect or attempt to collect any government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a government debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the government debt collectors intent to deposit any check or instrument not more than 10 business days nor less than three business days prior to any deposit.(3) The solicitation by a government debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a government debt by postcard.(8) Using any language or symbol, other than the government debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any government debt, a government debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the public agency or other entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the government debt collector.(D) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the government debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the government debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the government debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any government debt collector with respect to such debts, the government debt collector shall not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any government debt collector who brings any legal action on a government debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring that action only in a judicial district or similar legal entity in which the real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the government debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes such public agency or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A government debt collector shall not be held liable in any action brought under this section if the government debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001. |
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| 205 | | - | |
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| 206 | | - | |
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| 207 | | - | |
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| 208 | | - | 1788.77. Notwithstanding any other provision of this title, a government debt collector collecting or attempting to collect a government debt must comply with the following provisions: |
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| 209 | | - | |
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| 210 | | - | (a) Comply with all federal law regarding collection of government debt. |
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| 211 | | - | |
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| 212 | | - | (b) A government debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following: |
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| 213 | | - | |
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| 214 | | - | (1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer. |
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| 215 | | - | |
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| 216 | | - | (2) A government debt collector shall not state that such debtor owes any debt. |
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| 217 | | - | |
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| 218 | | - | (3) A government debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the government debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information. |
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| 219 | | - | |
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| 220 | | - | (4) A government debt collector shall not communicate by postcard. |
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| 221 | | - | |
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| 222 | | - | (5) A government debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the government debt collector is in the debt collection business or that the communication relates to the collection of a debt. |
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| 223 | | - | |
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| 224 | | - | (6) After the government debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the government debt collector. |
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| 225 | | - | |
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| 226 | | - | (c) (1) In any communication in connection with government debt collection, a government debt collector shall not, without the prior consent of the debtor given directly to the government debt collector or the express permission of a court of competent jurisdiction, a government debt collector may not communicate with a debtor in connection with the collection of any government debt. |
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| 227 | | - | |
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| 228 | | - | (A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a government debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location. |
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| 229 | | - | |
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| 230 | | - | (B) If the government debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the government debt collector or unless the attorney consents to direct communication with the debtor. |
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| 231 | | - | |
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| 232 | | - | (C) At the consumers place of employment if the government debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication. |
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| 233 | | - | |
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| 234 | | - | (2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the government debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a government debt collector may not communicate, in connection with the collection of any government debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the government debt collector. |
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| 235 | | - | |
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| 236 | | - | (3) When ceasing communication with a debtor, the government debt collector shall do all of the following: |
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| 237 | | - | |
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| 238 | | - | (A) Advise the consumer that the government debt collectors further efforts are being terminated. |
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| 239 | | - | |
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| 240 | | - | (B) Notify the debtor that the government debt collector or creditor may invoke specified remedies which are ordinarily invoked by such government debt collector or public agency. |
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| 241 | | - | |
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| 242 | | - | (C) Where applicable, notify the debtor that the government debt collector or public agency intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt. |
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| 243 | | - | |
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| 244 | | - | (4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator. |
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| 245 | | - | |
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| 246 | | - | (d) A government debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: |
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| 247 | | - | |
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| 248 | | - | (1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person. |
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| 249 | | - | |
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| 250 | | - | (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. |
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| 251 | | - | |
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| 252 | | - | (3) The publication of a list of debtors who allegedly refuse to pay government debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code. |
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| 253 | | - | |
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| 254 | | - | (4) The advertisement for sale of any government debt to coerce payment of the debt. |
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| 255 | | - | |
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| 256 | | - | (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. |
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| 257 | | - | |
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| 258 | | - | (6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity. |
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| 259 | | - | |
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| 260 | | - | (e) A government debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: |
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| 261 | | - | |
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| 262 | | - | (1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof. |
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| 263 | | - | |
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| 264 | | - | (2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt. |
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| 265 | | - | |
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| 266 | | - | (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney. |
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| 267 | | - | |
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| 268 | | - | (4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the government debt collector or public agency intends to take such action. |
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| 269 | | - | |
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| 270 | | - | (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. |
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| 271 | | - | |
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| 272 | | - | (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section. |
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| 273 | | - | |
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| 274 | | - | (7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor. |
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| 275 | | - | |
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| 276 | | - | (8) Communicating or threatening to communicate to any person information that is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed. |
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| 277 | | - | |
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| 278 | | - | (9) The use or distribution of any written communication that simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval. |
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| 279 | | - | |
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| 280 | | - | (10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor. |
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| 281 | | - | |
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| 282 | | - | (11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the government debt collector is attempting to collect a government debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a government debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. |
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| 283 | | - | |
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| 284 | | - | (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. |
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| 285 | | - | |
|---|
| 286 | | - | (13) The false representation or implication that documents are legal process. |
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| 287 | | - | |
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| 288 | | - | (14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization. |
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| 289 | | - | |
|---|
| 290 | | - | (15) The false representation or implication that documents are not legal process forms or do not require action by the consumer. |
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| 291 | | - | |
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| 292 | | - | (16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency. |
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| 293 | | - | |
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| 294 | | - | (f) A government debt collector shall not use unfair or unconscionable means to collect or attempt to collect any government debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: |
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| 295 | | - | |
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| 296 | | - | (1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law. |
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| 297 | | - | |
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| 298 | | - | (2) The acceptance by a government debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the government debt collectors intent to deposit any check or instrument not more than 10 business days nor less than three business days prior to any deposit. |
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| 299 | | - | |
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| 300 | | - | (3) The solicitation by a government debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution. |
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| 301 | | - | |
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| 302 | | - | (4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument. |
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| 303 | | - | |
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| 304 | | - | (5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees. |
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| 305 | | - | |
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| 306 | | - | (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if: |
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| 307 | | - | |
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| 308 | | - | (A) There is no present right to possession of the property claimed as collateral through an enforceable security interest. |
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| 309 | | - | |
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| 310 | | - | (B) There is no present intention to take possession of the property. |
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| 311 | | - | |
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| 312 | | - | (C) The property is exempt by law from such dispossession or disablement. |
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| 313 | | - | |
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| 314 | | - | (7) Communicating with a debtor regarding a government debt by postcard. |
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| 315 | | - | |
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| 316 | | - | (8) Using any language or symbol, other than the government debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business. |
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| 317 | | - | |
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| 318 | | - | (g) (1) Within five days after the initial communication with a debtor in connection with the collection of any government debt, a government debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following: |
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| 319 | | - | |
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| 320 | | - | (A) The amount of the debt. |
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| 321 | | - | |
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| 322 | | - | (B) The name of the public agency or other entity to which the debt is owed. |
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| 323 | | - | |
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| 324 | | - | (C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the government debt collector. |
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| 325 | | - | |
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| 326 | | - | (D) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the government debt collector. |
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| 327 | | - | |
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| 328 | | - | (E) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt. |
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| 329 | | - | |
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| 330 | | - | (2) If the debtor notifies the government debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the government debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency. |
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| 331 | | - | |
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| 332 | | - | (3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor. |
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| 333 | | - | |
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| 334 | | - | (4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a). |
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| 335 | | - | |
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| 336 | | - | (5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section. |
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| 337 | | - | |
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| 338 | | - | (h) If any debtor owes multiple debts and makes any single payment to any government debt collector with respect to such debts, the government debt collector shall not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions. |
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| 339 | | - | |
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| 340 | | - | (i) (1) Any government debt collector who brings any legal action on a government debt against any debtor shall do either of the following: |
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| 341 | | - | |
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| 342 | | - | (A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring that action only in a judicial district or similar legal entity in which the real property is located. |
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| 343 | | - | |
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| 344 | | - | (B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action. |
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| 345 | | - | |
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| 346 | | - | (2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors. |
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| 347 | | - | |
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| 348 | | - | (j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the government debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes such public agency or current owner, when in fact such person is not so participating. |
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| 349 | | - | |
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| 350 | | - | (2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section. |
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| 351 | | - | |
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| 352 | | - | (k) (1) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following: |
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| 353 | | - | |
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| 354 | | - | (A) Any actual damage sustained by such person as a result of such failure. |
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| 355 | | - | |
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| 356 | | - | (B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000). |
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| 357 | | - | |
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| 358 | | - | (ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the debt collector. |
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| 359 | | - | |
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| 360 | | - | (C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs. |
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| 361 | | - | |
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| 362 | | - | (2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following: |
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| 363 | | - | |
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| 364 | | - | (A) In any individual action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, and the extent to which such noncompliance was intentional. |
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| 365 | | - | |
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| 366 | | - | (B) In any class action under this section, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional. |
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| 367 | | - | |
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| 368 | | - | (3) A government debt collector shall not be held liable in any action brought under this section if the government debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error. |
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| 369 | | - | |
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| 370 | | - | (l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001. |
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| 371 | | - | |
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| 372 | | - | 1788.78. (a) A government debt collectors initial communication with a debtor in connection with the collection of any government debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the government debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the government debt, or any portion thereof, the government debt will be assumed to be valid by the government debt collector.(4) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the government debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the government debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the government debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the public agency with which the government debt originated, if different from the current holder of the government debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated, (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model, and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert government debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to ____.](b) If the debtor notifies the government debt collector in writing within the 30-day period described in subdivision (a) that the government debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the government debt collector obtains verification of the government debt or a copy of a judgment, or the name and address of the public agency with which the debt originated, and a copy of such verification or judgment, or name and address of the public agency with which the debt originated, is mailed to the debtor by the government debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the government debt collector in writing that the government debt, or any portion of the government debt, is disputed or that the debtor requests the name and address of the public agency with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the government debt or request the name and address of the public agency with which the debt originated.(c) A government debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the government debt collector cannot provide the information or documents within 15 calendar days, the government debt collector shall cease all collection of the debt until the government debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A government debt collector shall provide all debtors of government debt with whom it has contact an active postal address to which these requests can be sent. A government debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a government debt under this section shall not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice that does not relate to the collection of a government debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with government debt collection for purposes of this section. |
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| 373 | | - | |
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| 374 | | - | |
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| 375 | | - | |
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| 376 | | - | 1788.78. (a) A government debt collectors initial communication with a debtor in connection with the collection of any government debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following: |
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| 377 | | - | |
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| 378 | | - | (1) The amount of the government debt. |
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| 379 | | - | |
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| 380 | | - | (2) The name of the entity to whom the debt is owed. |
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| 381 | | - | |
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| 382 | | - | (3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the government debt, or any portion thereof, the government debt will be assumed to be valid by the government debt collector. |
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| 383 | | - | |
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| 384 | | - | (4) A statement that if the debtor notifies the government debt collector in writing within the 30-day period that the government debt, or any portion thereof, is disputed, the government debt collector will obtain verification of the government debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the government debt collector. |
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| 385 | | - | |
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| 386 | | - | (5) A statement that, upon the debtors written request within the 30-day period, the government debt collector will provide the debtor with the name and address of the public agency with which the government debt originated, if different from the current holder of the government debt. |
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| 387 | | - | |
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| 388 | | - | (6) A separate prominent notice in no smaller than 12-point type that states: |
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| 389 | | - | |
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| 390 | | - | You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated, (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model, and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert government debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to ____.] |
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| 391 | | - | |
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| 392 | | - | (b) If the debtor notifies the government debt collector in writing within the 30-day period described in subdivision (a) that the government debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the government debt collector shall cease collection of the debt, or any disputed portion thereof, until the government debt collector obtains verification of the government debt or a copy of a judgment, or the name and address of the public agency with which the debt originated, and a copy of such verification or judgment, or name and address of the public agency with which the debt originated, is mailed to the debtor by the government debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the government debt collector in writing that the government debt, or any portion of the government debt, is disputed or that the debtor requests the name and address of the public agency with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the government debt or request the name and address of the public agency with which the debt originated. |
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| 393 | | - | |
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| 394 | | - | (c) A government debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the government debt collector cannot provide the information or documents within 15 calendar days, the government debt collector shall cease all collection of the debt until the government debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A government debt collector shall provide all debtors of government debt with whom it has contact an active postal address to which these requests can be sent. A government debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree. |
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| 395 | | - | |
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| 396 | | - | (d) The failure of a debtor to dispute the validity of a government debt under this section shall not be construed by any court as an admission of liability by the debtor. |
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| 397 | | - | |
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| 398 | | - | (e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a). |
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| 399 | | - | |
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| 400 | | - | (f) The sending or delivery of any form or notice that does not relate to the collection of a government debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with government debt collection for purposes of this section. |
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| 401 | | - | |
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| 402 | | - | 1788.79. A government debt collector shall provide the following information in its subsequent communication with a debtor with respect to a government debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) of Section 1788.78 in no less than 12-point type:(a) The balance of the government debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the public agency with which the government debt originated. This subdivision shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the government debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the public agency with which the debt originated, or by that public agencys agent or assignee if applicable.(b) The name, address, and telephone number of the public agency with which the government debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the government debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the government debt to the debt collector or the last known name and address of the debtor known to the government debt collector.(e) The name, address, and telephone number of all persons that purchased the governmental debt if applicable.(f) The statement that: You may contact the public agency with which the government debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that public agency.(g) If the government debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the government debt.(h) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the government debt and identifies the date of the event or events that created the government debt, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in such documents.(i) That the government debt collector cannot report the government debt to a consumer reporting agency. |
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| 403 | | - | |
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| 404 | | - | |
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| 405 | | - | |
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| 406 | | - | 1788.79. A government debt collector shall provide the following information in its subsequent communication with a debtor with respect to a government debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) of Section 1788.78 in no less than 12-point type: |
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| 407 | | - | |
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| 408 | | - | (a) The balance of the government debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the public agency with which the government debt originated. This subdivision shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the government debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the public agency with which the debt originated, or by that public agencys agent or assignee if applicable. |
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| 409 | | - | |
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| 410 | | - | (b) The name, address, and telephone number of the public agency with which the government debt originated. |
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| 411 | | - | |
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| 412 | | - | (c) Any account numbers, case numbers, or citation numbers associated with the government debt. |
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| 413 | | - | |
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| 414 | | - | (d) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the government debt to the debt collector or the last known name and address of the debtor known to the government debt collector. |
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| 415 | | - | |
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| 416 | | - | (e) The name, address, and telephone number of all persons that purchased the governmental debt if applicable. |
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| 417 | | - | |
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| 418 | | - | (f) The statement that: You may contact the public agency with which the government debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that public agency. |
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| 419 | | - | |
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| 420 | | - | (g) If the government debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the government debt. |
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| 421 | | - | |
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| 422 | | - | (h) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the government debt and identifies the date of the event or events that created the government debt, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in such documents. |
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| 423 | | - | |
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| 424 | | - | (i) That the government debt collector cannot report the government debt to a consumer reporting agency. |
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| 425 | | - | |
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| 426 | | - | 1788.80. The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ________ or write to _________.](a) In the event that a government debt collector or person as defined in Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that government debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(b) Under this title, government debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(c) Under this title, government debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(d) There shall be no separate charge for translation services.(e) The California Association of Collectors may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Association of Collectors may make these translated materials available on its Internet Web sites, free of charge, within one year and three months of the operative date of this section. |
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| 427 | | - | |
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| 428 | | - | |
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| 429 | | - | |
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| 430 | | - | 1788.80. The following notification shall be placed in no smaller than 12 point font on the notices required by this title: |
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| 431 | | - | |
|---|
| 432 | | - | [placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ________ or write to _________.] |
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| 433 | | - | |
|---|
| 434 | | - | (a) In the event that a government debt collector or person as defined in Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that government debt collector or person shall do both of the following: |
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| 435 | | - | |
|---|
| 436 | | - | (1) Provide written translation services. |
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| 437 | | - | |
|---|
| 438 | | - | (2) Provide oral translation services. |
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| 439 | | - | |
|---|
| 440 | | - | (b) Under this title, government debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves. |
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| 441 | | - | |
|---|
| 442 | | - | (c) Under this title, government debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome. |
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| 443 | | - | |
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| 444 | | - | (d) There shall be no separate charge for translation services. |
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| 445 | | - | |
|---|
| 446 | | - | (e) The California Association of Collectors may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Association of Collectors may make these translated materials available on its Internet Web sites, free of charge, within one year and three months of the operative date of this section. |
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| 447 | | - | |
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| 448 | | - | 1788.81. (a) A government debt collector who violates this title with respect to any debtor shall be liable to that debtor only in an individual action, and its 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) A government 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 its additional liability therein to that debtor shall be for a penalty in such amount as the court may allow that 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 attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A government debt collector shall have no civil liability under this title if, within 15 days after discovering a violation that 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 government debt collector shall have no civil liability, to which the debt collector might otherwise be subject for a violation of this title, if the government 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) An action under this section may be brought in any appropriate court of competent jurisdiction in an individual capacity and the statute of limitations shall be one year from the date of the occurrence of the violation. |
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| 449 | | - | |
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| 450 | | - | |
|---|
| 451 | | - | |
|---|
| 452 | | - | 1788.81. (a) A government debt collector who violates this title with respect to any debtor shall be liable to that debtor only in an individual action, and its 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. |
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| 453 | | - | |
|---|
| 454 | | - | (b) A government 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 its additional liability therein to that debtor shall be for a penalty in such amount as the court may allow that shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000). |
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| 455 | | - | |
|---|
| 456 | | - | (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 attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith. |
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| 457 | | - | |
|---|
| 458 | | - | (d) A government debt collector shall have no civil liability under this title if, within 15 days after discovering a violation that 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. |
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| 459 | | - | |
|---|
| 460 | | - | (e) A government debt collector shall have no civil liability, to which the debt collector might otherwise be subject for a violation of this title, if the government 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. |
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| 461 | | - | |
|---|
| 462 | | - | (f) An action under this section may be brought in any appropriate court of competent jurisdiction in an individual capacity and the statute of limitations shall be one year from the date of the occurrence of the violation. |
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| 464 | | - | SEC. 2. Title 1.6C.7 (commencing with Section 1788.90) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. 1788.90. The following definitions apply for the purpose of this title:(a) The term towing debt collection means any act or practice in connection with the collection of towing debt.(b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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.(c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from:(1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code.(2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1.(3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims.(4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims.(d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment.(e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person.(f) The term lien has the same meaning as in Section 2872.(g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation.1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 towing debt will result in an accusation that the debtor has committed a crime if the 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 towing 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 towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services.(e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law.(f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement.(g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code.(h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law.(i) The threat to take any action against the debtor that is prohibited by this title.1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents.(c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication.(d) Causing a telephone to ring repeatedly in order to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor.1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 similar written instruments bearing the name of the attorney or counselor at law, unless the communication is by an attorney or counselor at law or has been approved or authorized by an attorney or counselor at law.(d) The representation that the 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 working on behalf of the particular governmental agency in question and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the towing debt may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges, fees, or penalties if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) The representation that information concerning a debtors failure or alleged failure to pay a towing debt has been, or may 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 towing debt is made.(k) The false representation that a towing debt has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money for a towing debt unless the claim is actually assigned to the collection agency.1788.95. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a towing debt that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the towing debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the towing debt, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the towing debt and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the towing debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the towing debt in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.(d) Accepting, collecting, or attempting to collect from the debtor the whole or any part of the towing debt that was discharged or otherwise satisfied, including by operation of law under Sections 9406 and 9608 of the Commercial Code, Section 3068.1 of the Civil Code, or Section 22851 of the Vehicle Code.1788.96. It is unlawful, with respect to attempted collection of a towing debt, for a debt collector 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.1788.97. (a) A towing debt collectors initial communication with a debtor in connection with the collection of any towing debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the towing debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the towing debt, or any portion thereof, the towing debt will be assumed to be valid by the towing debt collector.(4) A statement that if the debtor notifies the towing debt collector in writing within the 30-day period that the towing debt, or any portion thereof, is disputed, the towing debt collector will obtain verification of the towing debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the towing debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the public agency with which the towing debt originated, if different from the current holder of the towing debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert towing debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to____.](b) If the debtor notifies the towing debt collector in writing within the 30-day period described in subdivision (a) that the towing debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the towing debt or a copy of a judgment, or the name and address of the entity with which the debt originated, and a copy of the verification or judgment, or the name and address of the entity with which the debt originated, is mailed to the debtor by the towing debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the towing debt collector in writing that the towing debt, or any portion of the towing debt, is disputed or that the debtor requests the name and address of the entity with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the towing debt or request the name and address of the entity with which the debt originated.(c) A towing debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the towing debt collector cannot provide the information or documents within 15 calendar days, the towing debt collector shall cease all collection of the debt until the towing debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A towing debt collector shall provide all debtors of towing debt with whom it has contact an active postal address to which these requests can be sent. A towing debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a towing debt under this section may not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice which does not relate to the collection of a towing debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with towing debt collection for purposes of this section.1788.98. A towing debt collector shall provide the following information in its subsequent communication with a debtor with respect to a towing debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) in no less than 10-point font:(a) The balance of the towing debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the entity with which the towing debt originated. This section shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the towing debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the entity with which the debt originated, or by that entitys agent or assignee, if applicable.(b) The name, address and phone number of the public agency with which the towing debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the towing debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the entitys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the towing debt collector.(e) The name, address and telephone number of all persons that purchased the towing debt if applicable.(f) The statement that: You may contact the entity with which the towing debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that entity.(g) That the debtor may contact the entity with which the towing debt originated to seek the existence of and his or her eligibility for any repayment plan assistance offered by that entity.(h) If the towing debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the towing debt.(i) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code, or, if a copy of the documents are unavailable, a statement providing any available information that would customarily be included in such documents.(j) That the towing debt collector cannot report the government debt to a consumer reporting agency.(k) That the towing debt collector cannot sue the debtor for the towing debt if more than one year has passed since the towing debt arose.1788.99. The following notification shall be placed in no smaller than 12-point type on the notices required by this title.(a) The towing fees and access notice.(b) Notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code.[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ .](c) In the event that a towing debt collector or person, as defined in Section 1788.90, has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that towing debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(d) Under this title, towing debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(e) Under this title, towing debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(f) There shall be no separate charge for translation services.(g) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.1788.100. (a) A towing debt collector who violates Sections 1788.90 to 1788.98, inclusive, with respect to any debtor shall be liable to that debtor only in an individual action, and the debt collectors 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) A towing 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 its 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 the costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A towing debt collector shall have no civil liability under this title if, within 15 days 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 towing debt collector shall have no civil liability to which the debt collector might otherwise be subject to for a violation of this title, if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adopted to avoid the violation.(f) An 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) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.(h) Any intentional violation of the provisions of this title by the debtor may be raised as a defense by the towing debt collector, if the violation is pertinent or relevant to any claim or action brought against the towing debt collector by or on behalf of the debtor.1788.101. (a) A debt buyer that purchases a towing debt from a person shall not make any written statement to a debtor in an attempt to collect the towing debt unless the debt buyer possesses all of the following information:(1) That the debt buyer is the sole owner of the towing debt at issue or has the authority to assert the rights of all owners.(2) The balance of the towing debt and an explanation of the amount, nature, and reason for all interest, fees, charges, or penalties, if any, imposed by the person from which the towing debt originated, its agent, its assignee, or by any subsequent purchaser of the towing debt, if applicable.(3) The name, address, and telephone number of the person from whom the towing debt originated.(4) The account or any citation number associated with the towing debt by the person from whom the towing debt originated, if such account or citation number exist.(5) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the debt collector.(6) The names and addresses of all persons who purchased the towing debt, if applicable. The names and addresses shall be in sufficient form so as to reasonably identify each person or entity that purchased the towing debt.(7) A copy of the original invoice, ticket, judgment, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including any notices under Sections 22852 and 40220 of the Vehicle Code, and under Sections 3071 to 3072 of the Civil Code, if applicable, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in those documents.(8) If the towing debt stems from the use, removal, or storage of a vehicle, the make, model, and if available, the license plate number of the vehicle shall be provided.(b) In an action brought by a debt buyer on a towing debt, the complaint shall contain the items listed in paragraphs (1) to (8), inclusive, of subdivision (a) and attach a copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt required by paragraph (7) of subdivision (a).(c) The requirements of this section shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.(d) This section shall not apply to towing debts that arise from fraud.(e) A debt buyer shall provide the information or documents identified in subdivisions (a) and (e) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the towing debt or proof of the towing debt. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the towing debt until the debt buyer provides the debtor the information or documents described in subdivision (a). A debt buyer shall provide all debtors with whom it has contact regarding a towing debt, an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(f) A debt buyer of a towing debt shall include with its first written communication with the debtor, in no smaller than 12-point type, a separate notice that provides all of the following language:(1) You may request records showing the following: (A) that [insert name of debt buyer] has the right to seek collection of the towing debt, (B) the debt balance, including an explanation of any interest charges, additional fees, or penalties, if any, (C) the date of the event that created debt, (D) the name of the entity with which the towing debt originated, and the citation, account, or identification number associated with the debt, (E) the name and last known address of the debtor as it appeared in the originating agencys or entitys records prior to the sale of the towing debt, as appropriate, and (6) the names of all persons or entities that have purchased the debt. You may also request from us the date of the events that created the towing debt, and a brief description of the event that created the towing debt.A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].We cannot report this towing debt to a creditor reporting agency.(2) Notice of assignment as provided under Section 3069 of the Vehicle Code.(3) Notice of assignment as provided under subparagraph (A) of paragraph (2) of subdivision (a) of Section 40220 of the Vehicle Code.(4) When collecting on a time-barred towing debt:The law limits how long you can be sued on a debt. Because of the age of your debt, we cannot sue you for it. (g) In the event of a conflict between the requirements of subdivision (g) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.(h) Notwithstanding any provision of law to the contrary, nothing shall prevent a person from selling a towing debt to a debtor buyer with all of the information required in subdivision (a) of Section 1789.1 at the point of purchase.(i) This section shall apply to debt buyers with respect to all towing debt purchased on or after January 1, 2019.1788.102. (a) All settlement agreements between a debt buyer and a debtor concerning towing debt shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a towing debt shall provide to the debtor, within 30 calendar days, a receipt, or monthly statement. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account, citation, or other identification number, the name of the person from whom the towing debt originated, the account, citation or other identification number associated with the towing debt, and the remaining balance owing, if any. The receipt or statement may be provided electronically.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the towing debt, shall provide, within 30 calendar days, a final statement to the debtor that complies with subdivision (b). Once a debt buyer has accepted a payment as payment in full, or as a full and final compromise, of the towing debt, the debt buyer shall not sell an interest in a resolved towing debt, or any personal or financial information related to the resolved towing debt.1788.103. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a towing debt if the applicable statute of limitations on the debt buyers claim has expired.1788.104. (a) In an action brought by a debt buyer on a towing debt the complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying towing debt and a description of the events from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the towing debt at issue, or has authority to assert the rights of all owners of the towing debt.(4) The towing debt balance and an explanation of the amount, nature, and reason for all interest, fees, or penalties, if any, imposed by the debt buyer or any entity which purchased the towing debt before the debt buyer. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the balance at time of acquisition of the debt, the total of any postacquisition interest, and the total of any postacquisition fees.(5) The date of the event or events that created the towing debt.(6) The name and an address of the person from which the towing debt originated, and the account, violation, or other identification number associated with the towing debt. The name and address shall be in sufficient form so as to reasonably identify the person from which the towing debt originated.(7) The name and last known address of the debtor as they appeared in the records of the person from which the towing debt originated prior to the sale of the towing debt. If the towing debt was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons that purchased the towing debt which were not the person from which the towing debt originated, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.100.(b) A copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt described in subdivision (b) of Section 1788.100 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.1788.105. (a) In an action initiated by a debt buyer to collect a towing debt, no default or other judgment may be entered against a debtor unless records, authenticated through a sworn declaration by the debt buyer, are submitted by the debt buyer to the court to establish the facts required to be alleged by subdivision (b) of Section 1788.103.(b) No default or other judgment may be entered against a debtor unless a copy of the document described in subdivision (b) of Section 1788.103, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a towing debt, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.1788.106. (a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:(A) Six years after entry of the default or default judgment against the person.(B) One hundred eighty days of the first actual notice of the action.(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.(B) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victims Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she 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 associated with the judgment.(C) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the towing debt.(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.(d) This section shall apply to a default or default judgment entered on or after January 1, 2019, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.(e) This section shall not limit the equitable authority of the court or other available remedies under law.1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following:(1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person.(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).(b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer.(c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court.(2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith.(d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected.(e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.(f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation.(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: (a) Comply with all federal law regarding collection of towing debt.(b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A towing debt collector shall not state that such debtor owes any debt.(3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information.(4) A towing debt collector shall not communicate by postcard.(5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector.(c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector.(3) When ceasing communication with a debtor, the towing debt collector shall do all of the following:(A) Advise the consumer that the towing debt collectors further efforts are being terminated.(B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity.(C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any towing debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit.(3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a towing debt by postcard.(8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector.(D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable. |
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| 466 | | - | SEC. 2. Title 1.6C.7 (commencing with Section 1788.90) is added to Part 4 of Division 3 of the Civil Code, to read: |
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| 468 | | - | ### SEC. 2. |
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| 470 | | - | TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. 1788.90. The following definitions apply for the purpose of this title:(a) The term towing debt collection means any act or practice in connection with the collection of towing debt.(b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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.(c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from:(1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code.(2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1.(3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims.(4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims.(d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment.(e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person.(f) The term lien has the same meaning as in Section 2872.(g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation.1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 towing debt will result in an accusation that the debtor has committed a crime if the 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 towing 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 towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services.(e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law.(f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement.(g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code.(h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law.(i) The threat to take any action against the debtor that is prohibited by this title.1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents.(c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication.(d) Causing a telephone to ring repeatedly in order to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor.1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 similar written instruments bearing the name of the attorney or counselor at law, unless the communication is by an attorney or counselor at law or has been approved or authorized by an attorney or counselor at law.(d) The representation that the 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 working on behalf of the particular governmental agency in question and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the towing debt may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges, fees, or penalties if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) The representation that information concerning a debtors failure or alleged failure to pay a towing debt has been, or may 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 towing debt is made.(k) The false representation that a towing debt has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money for a towing debt unless the claim is actually assigned to the collection agency.1788.95. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a towing debt that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the towing debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the towing debt, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the towing debt and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the towing debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the towing debt in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.(d) Accepting, collecting, or attempting to collect from the debtor the whole or any part of the towing debt that was discharged or otherwise satisfied, including by operation of law under Sections 9406 and 9608 of the Commercial Code, Section 3068.1 of the Civil Code, or Section 22851 of the Vehicle Code.1788.96. It is unlawful, with respect to attempted collection of a towing debt, for a debt collector 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.1788.97. (a) A towing debt collectors initial communication with a debtor in connection with the collection of any towing debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the towing debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the towing debt, or any portion thereof, the towing debt will be assumed to be valid by the towing debt collector.(4) A statement that if the debtor notifies the towing debt collector in writing within the 30-day period that the towing debt, or any portion thereof, is disputed, the towing debt collector will obtain verification of the towing debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the towing debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the public agency with which the towing debt originated, if different from the current holder of the towing debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert towing debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to____.](b) If the debtor notifies the towing debt collector in writing within the 30-day period described in subdivision (a) that the towing debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the towing debt or a copy of a judgment, or the name and address of the entity with which the debt originated, and a copy of the verification or judgment, or the name and address of the entity with which the debt originated, is mailed to the debtor by the towing debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the towing debt collector in writing that the towing debt, or any portion of the towing debt, is disputed or that the debtor requests the name and address of the entity with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the towing debt or request the name and address of the entity with which the debt originated.(c) A towing debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the towing debt collector cannot provide the information or documents within 15 calendar days, the towing debt collector shall cease all collection of the debt until the towing debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A towing debt collector shall provide all debtors of towing debt with whom it has contact an active postal address to which these requests can be sent. A towing debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a towing debt under this section may not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice which does not relate to the collection of a towing debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with towing debt collection for purposes of this section.1788.98. A towing debt collector shall provide the following information in its subsequent communication with a debtor with respect to a towing debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) in no less than 10-point font:(a) The balance of the towing debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the entity with which the towing debt originated. This section shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the towing debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the entity with which the debt originated, or by that entitys agent or assignee, if applicable.(b) The name, address and phone number of the public agency with which the towing debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the towing debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the entitys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the towing debt collector.(e) The name, address and telephone number of all persons that purchased the towing debt if applicable.(f) The statement that: You may contact the entity with which the towing debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that entity.(g) That the debtor may contact the entity with which the towing debt originated to seek the existence of and his or her eligibility for any repayment plan assistance offered by that entity.(h) If the towing debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the towing debt.(i) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code, or, if a copy of the documents are unavailable, a statement providing any available information that would customarily be included in such documents.(j) That the towing debt collector cannot report the government debt to a consumer reporting agency.(k) That the towing debt collector cannot sue the debtor for the towing debt if more than one year has passed since the towing debt arose.1788.99. The following notification shall be placed in no smaller than 12-point type on the notices required by this title.(a) The towing fees and access notice.(b) Notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code.[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ .](c) In the event that a towing debt collector or person, as defined in Section 1788.90, has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that towing debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(d) Under this title, towing debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(e) Under this title, towing debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(f) There shall be no separate charge for translation services.(g) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.1788.100. (a) A towing debt collector who violates Sections 1788.90 to 1788.98, inclusive, with respect to any debtor shall be liable to that debtor only in an individual action, and the debt collectors 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) A towing 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 its 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 the costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A towing debt collector shall have no civil liability under this title if, within 15 days 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 towing debt collector shall have no civil liability to which the debt collector might otherwise be subject to for a violation of this title, if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adopted to avoid the violation.(f) An 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) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.(h) Any intentional violation of the provisions of this title by the debtor may be raised as a defense by the towing debt collector, if the violation is pertinent or relevant to any claim or action brought against the towing debt collector by or on behalf of the debtor.1788.101. (a) A debt buyer that purchases a towing debt from a person shall not make any written statement to a debtor in an attempt to collect the towing debt unless the debt buyer possesses all of the following information:(1) That the debt buyer is the sole owner of the towing debt at issue or has the authority to assert the rights of all owners.(2) The balance of the towing debt and an explanation of the amount, nature, and reason for all interest, fees, charges, or penalties, if any, imposed by the person from which the towing debt originated, its agent, its assignee, or by any subsequent purchaser of the towing debt, if applicable.(3) The name, address, and telephone number of the person from whom the towing debt originated.(4) The account or any citation number associated with the towing debt by the person from whom the towing debt originated, if such account or citation number exist.(5) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the debt collector.(6) The names and addresses of all persons who purchased the towing debt, if applicable. The names and addresses shall be in sufficient form so as to reasonably identify each person or entity that purchased the towing debt.(7) A copy of the original invoice, ticket, judgment, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including any notices under Sections 22852 and 40220 of the Vehicle Code, and under Sections 3071 to 3072 of the Civil Code, if applicable, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in those documents.(8) If the towing debt stems from the use, removal, or storage of a vehicle, the make, model, and if available, the license plate number of the vehicle shall be provided.(b) In an action brought by a debt buyer on a towing debt, the complaint shall contain the items listed in paragraphs (1) to (8), inclusive, of subdivision (a) and attach a copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt required by paragraph (7) of subdivision (a).(c) The requirements of this section shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.(d) This section shall not apply to towing debts that arise from fraud.(e) A debt buyer shall provide the information or documents identified in subdivisions (a) and (e) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the towing debt or proof of the towing debt. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the towing debt until the debt buyer provides the debtor the information or documents described in subdivision (a). A debt buyer shall provide all debtors with whom it has contact regarding a towing debt, an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(f) A debt buyer of a towing debt shall include with its first written communication with the debtor, in no smaller than 12-point type, a separate notice that provides all of the following language:(1) You may request records showing the following: (A) that [insert name of debt buyer] has the right to seek collection of the towing debt, (B) the debt balance, including an explanation of any interest charges, additional fees, or penalties, if any, (C) the date of the event that created debt, (D) the name of the entity with which the towing debt originated, and the citation, account, or identification number associated with the debt, (E) the name and last known address of the debtor as it appeared in the originating agencys or entitys records prior to the sale of the towing debt, as appropriate, and (6) the names of all persons or entities that have purchased the debt. You may also request from us the date of the events that created the towing debt, and a brief description of the event that created the towing debt.A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].We cannot report this towing debt to a creditor reporting agency.(2) Notice of assignment as provided under Section 3069 of the Vehicle Code.(3) Notice of assignment as provided under subparagraph (A) of paragraph (2) of subdivision (a) of Section 40220 of the Vehicle Code.(4) When collecting on a time-barred towing debt:The law limits how long you can be sued on a debt. Because of the age of your debt, we cannot sue you for it. (g) In the event of a conflict between the requirements of subdivision (g) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.(h) Notwithstanding any provision of law to the contrary, nothing shall prevent a person from selling a towing debt to a debtor buyer with all of the information required in subdivision (a) of Section 1789.1 at the point of purchase.(i) This section shall apply to debt buyers with respect to all towing debt purchased on or after January 1, 2019.1788.102. (a) All settlement agreements between a debt buyer and a debtor concerning towing debt shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a towing debt shall provide to the debtor, within 30 calendar days, a receipt, or monthly statement. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account, citation, or other identification number, the name of the person from whom the towing debt originated, the account, citation or other identification number associated with the towing debt, and the remaining balance owing, if any. The receipt or statement may be provided electronically.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the towing debt, shall provide, within 30 calendar days, a final statement to the debtor that complies with subdivision (b). Once a debt buyer has accepted a payment as payment in full, or as a full and final compromise, of the towing debt, the debt buyer shall not sell an interest in a resolved towing debt, or any personal or financial information related to the resolved towing debt.1788.103. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a towing debt if the applicable statute of limitations on the debt buyers claim has expired.1788.104. (a) In an action brought by a debt buyer on a towing debt the complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying towing debt and a description of the events from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the towing debt at issue, or has authority to assert the rights of all owners of the towing debt.(4) The towing debt balance and an explanation of the amount, nature, and reason for all interest, fees, or penalties, if any, imposed by the debt buyer or any entity which purchased the towing debt before the debt buyer. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the balance at time of acquisition of the debt, the total of any postacquisition interest, and the total of any postacquisition fees.(5) The date of the event or events that created the towing debt.(6) The name and an address of the person from which the towing debt originated, and the account, violation, or other identification number associated with the towing debt. The name and address shall be in sufficient form so as to reasonably identify the person from which the towing debt originated.(7) The name and last known address of the debtor as they appeared in the records of the person from which the towing debt originated prior to the sale of the towing debt. If the towing debt was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons that purchased the towing debt which were not the person from which the towing debt originated, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.100.(b) A copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt described in subdivision (b) of Section 1788.100 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.1788.105. (a) In an action initiated by a debt buyer to collect a towing debt, no default or other judgment may be entered against a debtor unless records, authenticated through a sworn declaration by the debt buyer, are submitted by the debt buyer to the court to establish the facts required to be alleged by subdivision (b) of Section 1788.103.(b) No default or other judgment may be entered against a debtor unless a copy of the document described in subdivision (b) of Section 1788.103, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a towing debt, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.1788.106. (a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:(A) Six years after entry of the default or default judgment against the person.(B) One hundred eighty days of the first actual notice of the action.(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.(B) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victims Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she 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 associated with the judgment.(C) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the towing debt.(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.(d) This section shall apply to a default or default judgment entered on or after January 1, 2019, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.(e) This section shall not limit the equitable authority of the court or other available remedies under law.1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following:(1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person.(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).(b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer.(c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court.(2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith.(d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected.(e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.(f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation.(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: (a) Comply with all federal law regarding collection of towing debt.(b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A towing debt collector shall not state that such debtor owes any debt.(3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information.(4) A towing debt collector shall not communicate by postcard.(5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector.(c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector.(3) When ceasing communication with a debtor, the towing debt collector shall do all of the following:(A) Advise the consumer that the towing debt collectors further efforts are being terminated.(B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity.(C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any towing debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit.(3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a towing debt by postcard.(8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector.(D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable. |
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| 472 | | - | TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. 1788.90. The following definitions apply for the purpose of this title:(a) The term towing debt collection means any act or practice in connection with the collection of towing debt.(b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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.(c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from:(1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code.(2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1.(3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims.(4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims.(d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment.(e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person.(f) The term lien has the same meaning as in Section 2872.(g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation.1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 towing debt will result in an accusation that the debtor has committed a crime if the 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 towing 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 towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services.(e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law.(f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement.(g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code.(h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law.(i) The threat to take any action against the debtor that is prohibited by this title.1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents.(c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication.(d) Causing a telephone to ring repeatedly in order to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances.1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor.1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 similar written instruments bearing the name of the attorney or counselor at law, unless the communication is by an attorney or counselor at law or has been approved or authorized by an attorney or counselor at law.(d) The representation that the 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 working on behalf of the particular governmental agency in question and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the towing debt may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges, fees, or penalties if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) The representation that information concerning a debtors failure or alleged failure to pay a towing debt has been, or may 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 towing debt is made.(k) The false representation that a towing debt has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money for a towing debt unless the claim is actually assigned to the collection agency.1788.95. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following practices:(a) Obtaining an affirmation from a debtor of a towing debt that has been discharged in bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time the affirmation is sought, the fact that the debtor is not legally obligated to make the affirmation.(b) Collecting or attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the towing debt, except as permitted by law.(c) Initiating communications, other than statements of account, with the debtor in regard to the towing debt, when the debt collector has been previously notified in writing by the debtors attorney that the debtor is represented by the attorney with respect to the towing debt and that notice includes the attorneys name and address and a request by the attorney that all communications regarding the towing debt be addressed to the attorney, unless the attorney fails to answer correspondence, return telephone calls, or discuss the towing debt in question. This subdivision shall not apply if prior approval has been obtained from the debtors attorney, or if the communication is a response in the ordinary course of business to a debtors inquiry.(d) Accepting, collecting, or attempting to collect from the debtor the whole or any part of the towing debt that was discharged or otherwise satisfied, including by operation of law under Sections 9406 and 9608 of the Commercial Code, Section 3068.1 of the Civil Code, or Section 22851 of the Vehicle Code.1788.96. It is unlawful, with respect to attempted collection of a towing debt, for a debt collector 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.1788.97. (a) A towing debt collectors initial communication with a debtor in connection with the collection of any towing debt, shall, unless the following information was already obtained or the debtor has paid the debt, send the debtor a written notice containing all of the following:(1) The amount of the towing debt.(2) The name of the entity to whom the debt is owed.(3) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the towing debt, or any portion thereof, the towing debt will be assumed to be valid by the towing debt collector.(4) A statement that if the debtor notifies the towing debt collector in writing within the 30-day period that the towing debt, or any portion thereof, is disputed, the towing debt collector will obtain verification of the towing debt or a copy of a judgment against the debtor and a copy of such verification or judgment will be mailed to the debtor by the towing debt collector.(5) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the public agency with which the towing debt originated, if different from the current holder of the towing debt.(6) A separate prominent notice in no smaller than 12-point type that states:You may request records showing the following: (1) the name, address and telephone number of the public agency with which this debt originated; (2) the debt balance, including an explanation of any interest charges and additional fees; (3) account numbers, citation numbers, or ticket numbers associated with the debt; (4) if the debt involves a vehicle, the make, model and license plate number of the vehicle; (5) the name and last known address of the debtor. A request for these records may be addressed to: [insert towing debt collectors active mailing address and email address, if applicable]. Translation of this document is available upon request. To request a translated version call ____ or write to____.](b) If the debtor notifies the towing debt collector in writing within the 30-day period described in subdivision (a) that the towing debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the public agency with which the debt originated, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the towing debt or a copy of a judgment, or the name and address of the entity with which the debt originated, and a copy of the verification or judgment, or the name and address of the entity with which the debt originated, is mailed to the debtor by the towing debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subdivision (a) unless the debtor has notified the towing debt collector in writing that the towing debt, or any portion of the towing debt, is disputed or that the debtor requests the name and address of the entity with which the debt originated. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the towing debt or request the name and address of the entity with which the debt originated.(c) A towing debt collector shall provide the information or documents identified in subdivision (a) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the debt or proof of the debt. If the towing debt collector cannot provide the information or documents within 15 calendar days, the towing debt collector shall cease all collection of the debt until the towing debt collector provides the debtor the information or documents described in subdivision (a). Except as provided otherwise in this title, the request by the debtor shall be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A towing debt collector shall provide all debtors of towing debt with whom it has contact an active postal address to which these requests can be sent. A towing debt collector may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(d) The failure of a debtor to dispute the validity of a towing debt under this section may not be construed by any court as an admission of liability by the debtor.(e) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(f) The sending or delivery of any form or notice which does not relate to the collection of a towing debt and is expressly required by any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with towing debt collection for purposes of this section.1788.98. A towing debt collector shall provide the following information in its subsequent communication with a debtor with respect to a towing debt following either confirmation of the debtors identity or the lapse of 30 days of no response from the debtor following his or her receipt of the notice in subdivision (a) in no less than 10-point font:(a) The balance of the towing debt and an explanation of the amount, nature, and source of any and all charges, interest, and fees imposed by the entity with which the towing debt originated. This section shall not be deemed to require a specific itemization, but the explanation shall identify separately the total balance of the towing debt, and a breakdown of the amount and nature of each type of charge, interest, fee, or penalty imposed by the entity with which the debt originated, or by that entitys agent or assignee, if applicable.(b) The name, address and phone number of the public agency with which the towing debt originated.(c) Any account numbers, case numbers, or citation numbers associated with the towing debt.(d) The more recent of either the name and last known address of the debtor as they appeared in the entitys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the towing debt collector.(e) The name, address and telephone number of all persons that purchased the towing debt if applicable.(f) The statement that: You may contact the entity with which the towing debt originated to seek the existence of and your eligibility for any repayment plan assistance offered by that entity.(g) That the debtor may contact the entity with which the towing debt originated to seek the existence of and his or her eligibility for any repayment plan assistance offered by that entity.(h) If the towing debt stems from the use of a vehicle, the make, model, and license plate number of the vehicle and the date of the event or events that created the towing debt.(i) A copy of the original invoice, ticket, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code, or, if a copy of the documents are unavailable, a statement providing any available information that would customarily be included in such documents.(j) That the towing debt collector cannot report the government debt to a consumer reporting agency.(k) That the towing debt collector cannot sue the debtor for the towing debt if more than one year has passed since the towing debt arose.1788.99. The following notification shall be placed in no smaller than 12-point type on the notices required by this title.(a) The towing fees and access notice.(b) Notices under Sections 22852 and 40220 of the Vehicle Code and under Sections 3071 to 3072, inclusive, of the Civil Code.[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ .](c) In the event that a towing debt collector or person, as defined in Section 1788.90, has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that towing debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(d) Under this title, towing debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(e) Under this title, towing debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the Department of Motor Vehicles or a certified translator, that are available free of charge, are not unduly burdensome.(f) There shall be no separate charge for translation services.(g) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.1788.100. (a) A towing debt collector who violates Sections 1788.90 to 1788.98, inclusive, with respect to any debtor shall be liable to that debtor only in an individual action, and the debt collectors 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) A towing 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 its 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 the costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Reasonable attorneys fees may be awarded to a prevailing creditor upon a finding by the court that the debtors prosecution or defense of the action was not in good faith.(d) A towing debt collector shall have no civil liability under this title if, within 15 days 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 towing debt collector shall have no civil liability to which the debt collector might otherwise be subject to for a violation of this title, if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adopted to avoid the violation.(f) An 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) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.(h) Any intentional violation of the provisions of this title by the debtor may be raised as a defense by the towing debt collector, if the violation is pertinent or relevant to any claim or action brought against the towing debt collector by or on behalf of the debtor.1788.101. (a) A debt buyer that purchases a towing debt from a person shall not make any written statement to a debtor in an attempt to collect the towing debt unless the debt buyer possesses all of the following information:(1) That the debt buyer is the sole owner of the towing debt at issue or has the authority to assert the rights of all owners.(2) The balance of the towing debt and an explanation of the amount, nature, and reason for all interest, fees, charges, or penalties, if any, imposed by the person from which the towing debt originated, its agent, its assignee, or by any subsequent purchaser of the towing debt, if applicable.(3) The name, address, and telephone number of the person from whom the towing debt originated.(4) The account or any citation number associated with the towing debt by the person from whom the towing debt originated, if such account or citation number exist.(5) The more recent of either the name and last known address of the debtor as they appeared in the public agencys records at the time of the assignment of the towing debt to the debt collector or the last known name and address of the debtor known to the debt collector.(6) The names and addresses of all persons who purchased the towing debt, if applicable. The names and addresses shall be in sufficient form so as to reasonably identify each person or entity that purchased the towing debt.(7) A copy of the original invoice, ticket, judgment, other documentation, or electronic record that substantiates the towing debt and identifies the date of the event or events that created the towing debt, including any notices under Sections 22852 and 40220 of the Vehicle Code, and under Sections 3071 to 3072 of the Civil Code, if applicable, or, if a copy of such documents are unavailable, a statement providing any available information that would customarily be included in those documents.(8) If the towing debt stems from the use, removal, or storage of a vehicle, the make, model, and if available, the license plate number of the vehicle shall be provided.(b) In an action brought by a debt buyer on a towing debt, the complaint shall contain the items listed in paragraphs (1) to (8), inclusive, of subdivision (a) and attach a copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt required by paragraph (7) of subdivision (a).(c) The requirements of this section shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.(d) This section shall not apply to towing debts that arise from fraud.(e) A debt buyer shall provide the information or documents identified in subdivisions (a) and (e) to the debtor without charge within 15 calendar days of receipt of a debtors written request for information regarding the towing debt or proof of the towing debt. If the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the towing debt until the debt buyer provides the debtor the information or documents described in subdivision (a). A debt buyer shall provide all debtors with whom it has contact regarding a towing debt, an active postal address to which these requests can be sent. A debt buyer may also provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree.(f) A debt buyer of a towing debt shall include with its first written communication with the debtor, in no smaller than 12-point type, a separate notice that provides all of the following language:(1) You may request records showing the following: (A) that [insert name of debt buyer] has the right to seek collection of the towing debt, (B) the debt balance, including an explanation of any interest charges, additional fees, or penalties, if any, (C) the date of the event that created debt, (D) the name of the entity with which the towing debt originated, and the citation, account, or identification number associated with the debt, (E) the name and last known address of the debtor as it appeared in the originating agencys or entitys records prior to the sale of the towing debt, as appropriate, and (6) the names of all persons or entities that have purchased the debt. You may also request from us the date of the events that created the towing debt, and a brief description of the event that created the towing debt.A request for these records may be addressed to: [insert debt buyers active mailing address and email address, if applicable].We cannot report this towing debt to a creditor reporting agency.(2) Notice of assignment as provided under Section 3069 of the Vehicle Code.(3) Notice of assignment as provided under subparagraph (A) of paragraph (2) of subdivision (a) of Section 40220 of the Vehicle Code.(4) When collecting on a time-barred towing debt:The law limits how long you can be sued on a debt. Because of the age of your debt, we cannot sue you for it. (g) In the event of a conflict between the requirements of subdivision (g) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevail.(h) Notwithstanding any provision of law to the contrary, nothing shall prevent a person from selling a towing debt to a debtor buyer with all of the information required in subdivision (a) of Section 1789.1 at the point of purchase.(i) This section shall apply to debt buyers with respect to all towing debt purchased on or after January 1, 2019.1788.102. (a) All settlement agreements between a debt buyer and a debtor concerning towing debt shall be documented in open court or otherwise reduced to writing. The debt buyer shall ensure that a copy of the written agreement is provided to the debtor.(b) A debt buyer that receives payment on a towing debt shall provide to the debtor, within 30 calendar days, a receipt, or monthly statement. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account, citation, or other identification number, the name of the person from whom the towing debt originated, the account, citation or other identification number associated with the towing debt, and the remaining balance owing, if any. The receipt or statement may be provided electronically.(c) A debt buyer that accepts a payment as payment in full, or as a full and final compromise of the towing debt, shall provide, within 30 calendar days, a final statement to the debtor that complies with subdivision (b). Once a debt buyer has accepted a payment as payment in full, or as a full and final compromise, of the towing debt, the debt buyer shall not sell an interest in a resolved towing debt, or any personal or financial information related to the resolved towing debt.1788.103. A debt buyer shall not bring suit or initiate an arbitration or other legal proceeding to collect a towing debt if the applicable statute of limitations on the debt buyers claim has expired.1788.104. (a) In an action brought by a debt buyer on a towing debt the complaint shall allege all of the following:(1) That the plaintiff is a debt buyer.(2) The nature of the underlying towing debt and a description of the events from which it is derived, in a short and plain statement.(3) That the debt buyer is the sole owner of the towing debt at issue, or has authority to assert the rights of all owners of the towing debt.(4) The towing debt balance and an explanation of the amount, nature, and reason for all interest, fees, or penalties, if any, imposed by the debt buyer or any entity which purchased the towing debt before the debt buyer. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the balance at time of acquisition of the debt, the total of any postacquisition interest, and the total of any postacquisition fees.(5) The date of the event or events that created the towing debt.(6) The name and an address of the person from which the towing debt originated, and the account, violation, or other identification number associated with the towing debt. The name and address shall be in sufficient form so as to reasonably identify the person from which the towing debt originated.(7) The name and last known address of the debtor as they appeared in the records of the person from which the towing debt originated prior to the sale of the towing debt. If the towing debt was sold prior to January 1, 2019, the name and last known address of the debtor as they appeared in the debt owners records on December 31, 2018, shall be sufficient.(8) The names and addresses of all persons that purchased the towing debt which were not the person from which the towing debt originated, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.(9) That the debt buyer has complied with Section 1788.100.(b) A copy of the original invoice, ticket, notice, judgment, or other documentation that substantiates the towing debt described in subdivision (b) of Section 1788.100 shall be attached to the complaint.(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.1788.105. (a) In an action initiated by a debt buyer to collect a towing debt, no default or other judgment may be entered against a debtor unless records, authenticated through a sworn declaration by the debt buyer, are submitted by the debt buyer to the court to establish the facts required to be alleged by subdivision (b) of Section 1788.103.(b) No default or other judgment may be entered against a debtor unless a copy of the document described in subdivision (b) of Section 1788.103, authenticated through a sworn declaration, has been submitted by the debt buyer to the court.(c) In any action on a towing debt, if a debt buyer plaintiff seeks a default judgment and has not complied with the requirements of this title, the court shall not enter a default judgment for the plaintiff and may, in its discretion, dismiss the action.(d) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section 585 of the Code of Civil Procedure.1788.106. (a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:(A) Six years after entry of the default or default judgment against the person.(B) One hundred eighty days of the first actual notice of the action.(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.(B) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victims Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she 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 associated with the judgment.(C) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the towing debt.(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.(d) This section shall apply to a default or default judgment entered on or after January 1, 2019, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.(e) This section shall not limit the equitable authority of the court or other available remedies under law.1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following:(1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person.(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).(b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer.(c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court.(2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith.(d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected.(e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.(f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation.(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title.1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: (a) Comply with all federal law regarding collection of towing debt.(b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A towing debt collector shall not state that such debtor owes any debt.(3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information.(4) A towing debt collector shall not communicate by postcard.(5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector.(c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector.(3) When ceasing communication with a debtor, the towing debt collector shall do all of the following:(A) Advise the consumer that the towing debt collectors further efforts are being terminated.(B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity.(C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any towing debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit.(3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a towing debt by postcard.(8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector.(D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001.1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable. |
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| 473 | | - | |
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| 474 | | - | TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. |
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| 475 | | - | |
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| 476 | | - | TITLE 1.6C.7. FAIR DEBT COLLECTION PRACTICES FOR TOWING DEBT. |
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| 477 | | - | |
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| 478 | | - | 1788.90. The following definitions apply for the purpose of this title:(a) The term towing debt collection means any act or practice in connection with the collection of towing debt.(b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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.(c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from:(1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code.(2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1.(3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims.(4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims.(d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment.(e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person.(f) The term lien has the same meaning as in Section 2872.(g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation. |
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| 479 | | - | |
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| 480 | | - | |
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| 481 | | - | |
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| 482 | | - | 1788.90. The following definitions apply for the purpose of this title: |
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| 483 | | - | |
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| 484 | | - | (a) The term towing debt collection means any act or practice in connection with the collection of towing debt. |
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| 485 | | - | |
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| 486 | | - | (b) The term towing debt collector means any person who, in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection concerning towing debt. The term includes public agencies and 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. |
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| 487 | | - | |
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| 488 | | - | (c) The term towing debt means obligations to pay money, property, or their equivalent resulting from the charges underlying a lien created by operation of law under Section 2881 from: |
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| 489 | | - | |
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| 490 | | - | (1) Unpaid towing or storage charges under Section 22851 of the Vehicle Code. |
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| 491 | | - | |
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| 492 | | - | (2) Unpaid charges for repairing, performing labor upon, furnishing supplies or materials for, storing, safekeeping of, or rental of parking space for a vehicle under subdivision (a) of Section 3068 or subdivision (a) of Section 3068.1. |
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| 493 | | - | |
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| 494 | | - | (3) Unpaid charges for towing or storing street vendor carts and equipment. The term includes obligations to pay money, property, or their equivalent resulting from deficiency claims. |
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| 495 | | - | |
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| 496 | | - | (4) Obligations to pay money, property, or their equivalent, resulting from deficiency claims. |
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| 497 | | - | |
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| 498 | | - | (d) The term person means a law enforcement agency, city, county, the state, a tow yard, storage facility, an impounding yard, natural person, partnership, corporation, limited liability company, trust, estate, cooperative, or similar entity that charges to tow, store, repair, perform labor upon, furnish supplies or materials for, keep safe, or rent parking spaces for vehicles or street vendor carts or equipment. |
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| 499 | | - | |
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| 500 | | - | (e) The term debtor means a natural person from whom a debt collector seeks to collect a towing debt that is due and owing or alleged to be due and owing from the person. |
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| 501 | | - | |
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| 502 | | - | (f) The term lien has the same meaning as in Section 2872. |
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| 503 | | - | |
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| 504 | | - | (g) The term debt buyer means a person who is regularly engaged in the business of purchasing towing debt for collection purposes, whether the person collects the towing debt himself or herself, hires a third party for collection, or hires an attorney at law for collection litigation. |
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| 505 | | - | |
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| 506 | | - | 1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 towing debt will result in an accusation that the debtor has committed a crime if the 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 towing 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 towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services.(e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law.(f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement.(g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code.(h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law.(i) The threat to take any action against the debtor that is prohibited by this title. |
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| 507 | | - | |
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| 508 | | - | |
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| 509 | | - | |
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| 510 | | - | 1788.91. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following conduct: |
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| 511 | | - | |
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| 512 | | - | (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. |
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| 513 | | - | |
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| 514 | | - | (b) The threat that the failure to pay a towing debt will result in an accusation that the debtor has committed a crime if the accusation, if made, would be false. |
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| 515 | | - | |
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| 516 | | - | (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 towing debt, which the debt collector knows or has reason to believe will defame the debtor. |
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| 517 | | - | |
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| 518 | | - | (d) The threat to the debtor to sell or assign to another person the obligation of the debtor to pay a towing debt, with an accompanying false representation that the result of the sale or assignment would be that the debtor would lose any defense to the towing debt or lose any eligibility for repayment assistance services. |
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| 519 | | - | |
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| 520 | | - | (e) The threat to the debtor that the nonpayment of the towing 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 or payments of the debtor, unless that action is in fact contemplated by the debt collector and permitted by law. |
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| 521 | | - | |
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| 522 | | - | (f) The threat to the debtor that the nonpayment of the towing debt will result in contacting immigration enforcement. |
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| 523 | | - | |
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| 524 | | - | (g) The refusal to allow a debtor to retrieve personal property from his or her vehicle, at no charge, during normal business hours, and without any conditions except those permitted under Section 22651.07 of the Vehicle Code. |
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| 525 | | - | |
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| 526 | | - | (h) The threat that the nonpayment of the a towing debt will result in moving the debtors vehicle or food cart to another facility, which would result in additional charges, unless that action is in fact contemplated by the debt collector and permitted by law. |
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| 527 | | - | |
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| 528 | | - | (i) The threat to take any action against the debtor that is prohibited by this title. |
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| 529 | | - | |
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| 530 | | - | 1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Using obscene or profane language.(b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents.(c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication.(d) Causing a telephone to ring repeatedly in order to annoy the person called.(e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances. |
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| 531 | | - | |
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| 532 | | - | |
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| 533 | | - | |
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| 534 | | - | 1788.92. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices: |
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| 535 | | - | |
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| 536 | | - | (a) Using obscene or profane language. |
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| 537 | | - | |
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| 538 | | - | (b) Placing telephone calls without disclosure of the callers identity, and the agency he or she represents. |
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| 539 | | - | |
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| 540 | | - | (c) Causing expense to any person for long distance telephone calls or other telecommunications charges for similar communication, by misrepresenting to the person the purpose of the telephone call or other communication. |
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| 541 | | - | |
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| 542 | | - | (d) Causing a telephone to ring repeatedly in order to annoy the person called. |
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| 543 | | - | |
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| 544 | | - | (e) Communicating with the debtor, by telephone or other communication or in person, with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances. |
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| 545 | | - | |
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| 546 | | - | 1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices:(a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact.(b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication.(c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor.(d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor. |
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| 547 | | - | |
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| 548 | | - | |
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| 549 | | - | |
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| 550 | | - | 1788.93. A towing debt collector shall not collect or attempt to collect a towing debt by means of any of the following practices: |
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| 551 | | - | |
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| 552 | | - | (a) Communicating with the debtors employer regarding the towing debt unless that communication is necessary to the collection of the towing debt or unless the debtor or the debtors attorney has consented in writing to the communication. A communication is necessary to the collection of the towing debt only if it is made for the purposes of verifying the debtors employment, locating the debtor, or garnishing the debtors wages after a judgment. Any such communication shall be in writing unless the written communication receives no response within 15 days and shall be made only as many times as is necessary to the collection of the towing debt. Communications to a debtors employer regarding a towing 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 debtors employment may be oral without prior written contact. |
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| 553 | | - | |
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| 554 | | - | (b) Communicating information regarding a towing debt to any member of the debtors family, other than the debtors spouse or the parents or guardians of the debtor who is either a minor or who resides in the same household with a parent or guardian, unless the purpose of the communication is to locate the debtor, or if the debtor or the debtors attorney has consented in writing to the communication. |
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| 555 | | - | |
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| 556 | | - | (c) Communicating to any person any list of debtors that discloses the nature or existence of a towing debt, commonly known as deadbeat lists, or advertising towing debt to pay for sale, by naming the debtor. |
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| 557 | | - | |
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| 558 | | - | (d) Communicating with the debtor by means of a written communication that displays or conveys any information about the towing debt or the debtor other than the name, address, and telephone number of the debtor and the debt collector and that is intended both to be seen by any other person and also to embarrass the debtor. |
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| 559 | | - | |
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| 560 | | - | 1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any 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 similar written instruments bearing the name of the attorney or counselor at law, unless the communication is by an attorney or counselor at law or has been approved or authorized by an attorney or counselor at law.(d) The representation that the 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 working on behalf of the particular governmental agency in question and is acting on behalf of that agency in the debt collection matter.(e) The false representation that the towing debt may be increased by the addition of attorneys fees, investigation fees, service fees, finance charges, or other charges, fees, or penalties if, in fact, those charges, fees, or penalties may not legally be added to the existing obligation.(f) The representation that information concerning a debtors failure or alleged failure to pay a towing debt has been, or may 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 towing debt is made.(k) The false representation that a towing debt has been, is about to be, or will be sold, assigned, or referred to a debt collector for collection.(l) Any communication by a licensed collection agency to a debtor demanding money for a towing debt unless the claim is actually assigned to the collection agency. |
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| 561 | | - | |
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| 562 | | - | |
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| 563 | | - | |
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| 564 | | - | 1788.94. A towing debt collector shall not collect or attempt to collect a towing debt under this title by means of any of the following practices: |
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| 215 | + | 1788.13. No debt collector shall collect or attempt to collect a consumer debt or nonconsensual obligation to pay by means of the following practices: |
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| 826 | | - | 1788.106. (a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action. |
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| 827 | | - | |
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| 828 | | - | (2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: |
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| 829 | | - | |
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| 830 | | - | (A) Six years after entry of the default or default judgment against the person. |
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| 831 | | - | |
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| 832 | | - | (B) One hundred eighty days of the first actual notice of the action. |
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| 833 | | - | |
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| 834 | | - | (3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action. |
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| 835 | | - | |
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| 836 | | - | (B) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victims Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she 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 associated with the judgment. |
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| 837 | | - | |
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| 838 | | - | (C) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the towing debt. |
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| 839 | | - | |
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| 840 | | - | (b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint. |
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| 841 | | - | |
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| 842 | | - | (c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the persons lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment. |
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| 843 | | - | |
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| 844 | | - | (d) This section shall apply to a default or default judgment entered on or after January 1, 2019, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment. |
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| 845 | | - | |
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| 846 | | - | (e) This section shall not limit the equitable authority of the court or other available remedies under law. |
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| 847 | | - | |
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| 848 | | - | 1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following:(1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person.(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).(b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer.(c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court.(2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith.(d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected.(e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error.(f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation.(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title. |
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| 849 | | - | |
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| 850 | | - | |
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| 851 | | - | |
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| 852 | | - | 1788.107. (a) In the case of an action brought by an individual or individuals, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title with respect to any person shall be liable to that person in an amount equal to the sum of the following: |
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| 853 | | - | |
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| 854 | | - | (1) Any actual damages sustained by that person as a result of the violation, including, but not limited to, the amount of any judgment obtained by the debt buyer as a result of a time-barred suit to collect a towing debt from that person. |
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| 855 | | - | |
|---|
| 856 | | - | (2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000). |
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| 857 | | - | |
|---|
| 858 | | - | (b) In the case of a class action, a debt buyer that violates any provision of Sections 1788.100 to 1788.105, inclusive, of this title shall be liable for any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a). If the court finds that the debt buyer engaged in a pattern and practice of violating any provision of this title, the court may award additional damages to the class in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of the debt buyer. |
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| 859 | | - | |
|---|
| 860 | | - | (c) (1) In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorneys fees as determined by the court. |
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| 861 | | - | |
|---|
| 862 | | - | (2) Reasonable attorneys fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiffs prosecution of the action was not in good faith. |
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| 863 | | - | |
|---|
| 864 | | - | (d) In determining the amount of liability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected. |
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| 865 | | - | |
|---|
| 866 | | - | (e) A debt buyer shall have no civil liability under this section if the debt buyer shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error, and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any error. |
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| 867 | | - | |
|---|
| 868 | | - | (f) An action to enforce any liability created by this title shall be brought within one year from the date of the last violation. |
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| 869 | | - | |
|---|
| 870 | | - | (g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act (Title 1.6C (commencing with Section 1788)), the Fair Debt Buying Practices Act, or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this title. |
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| 871 | | - | |
|---|
| 872 | | - | 1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. |
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| 873 | | - | |
|---|
| 874 | | - | |
|---|
| 875 | | - | |
|---|
| 876 | | - | 1788.108. If a vehicle or food cart is sold at a lien sale for less than one-half of its reasonable market value, then the towing debt shall be equal to one-half of the value of the deficiency judgment. This section does not apply to lien sales by a new motor vehicle dealer as defined in Section 426 of the Vehicle Code. Reasonable market value has the same meaning as in Section 11950 of the Vehicle Code, which is the average retail value of a used vehicle based on the condition, mileage, year, make, and model of the vehicle, as determined within the last 60 days by a nationally recognized pricing guide that provides used vehicle retail values or pricing reports to vehicle dealers or the public. Nationally recognized pricing guide includes, but is not limited to, the Kelley Blue Book (KBB), Edmunds, the Black Book, or the National Automobile Dealers Association (NADA) Guide. It shall be reasonable to base a determination of a vehicles or food carts value, including its condition, on the information provided in its Notice of Stored Vehicle from the public agency that ordered the removal or storage of that vehicle or food cart. It shall also be reasonable to base the valuation of a vehicle or food cart on the information in the DMVs Statement of Facts REG 256 form. |
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| 877 | | - | |
|---|
| 878 | | - | 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: (a) Comply with all federal law regarding collection of towing debt.(b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following:(1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer.(2) A towing debt collector shall not state that such debtor owes any debt.(3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information.(4) A towing debt collector shall not communicate by postcard.(5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt.(6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector.(c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt.(A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location.(B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor.(C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication.(2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector.(3) When ceasing communication with a debtor, the towing debt collector shall do all of the following:(A) Advise the consumer that the towing debt collectors further efforts are being terminated.(B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity.(C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt.(4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator.(d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.(3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code.(4) The advertisement for sale of any towing debt to coerce payment of the debt.(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.(6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity.(e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof.(2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt.(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action.(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section.(7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor.(8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed.(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval.(10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor.(11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.(13) The false representation or implication that documents are legal process.(14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization.(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.(f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:(1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law.(2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit.(3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument.(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:(A) There is no present right to possession of the property claimed as collateral through an enforceable security interest.(B) There is no present intention to take possession of the property.(C) The property is exempt by law from such dispossession or disablement.(7) Communicating with a debtor regarding a towing debt by postcard.(8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business.(g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following:(A) The amount of the debt.(B) The name of the entity to which the debt is owed.(C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector.(D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector.(E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt.(2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency.(3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor.(4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a).(5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.(h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions.(i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following:(A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located.(B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action.(2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors.(j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating.(2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section.(k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following:(A) Any actual damage sustained by such person as a result of such failure.(B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000).(ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector.(C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.(2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following:(A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.(B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.(3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error.(l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001. |
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| 879 | | - | |
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| 880 | | - | |
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| 881 | | - | |
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| 882 | | - | 1788.109. Notwithstanding any other provision of this title, a towing debt collector collecting or attempting to collect a towing debt must comply with the following provisions: |
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| 883 | | - | |
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| 884 | | - | (a) Comply with all federal law regarding collection of towing debt. |
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| 885 | | - | |
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| 886 | | - | (b) A towing debt collector communicating with any person other than the debtor for the purpose of acquiring location information about the debtor shall do all of the following: |
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| 887 | | - | |
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| 888 | | - | (1) Identify himself or herself and state that he or she is confirming or correcting location information concerning the debtor, and, only if expressly requested, identify his or her employer. |
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| 889 | | - | |
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| 890 | | - | (2) A towing debt collector shall not state that such debtor owes any debt. |
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| 891 | | - | |
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| 892 | | - | (3) A towing debt collector shall not communicate with any person more than once unless requested to do so by that person or unless the towing debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that the person now has correct or complete location information. |
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| 893 | | - | |
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| 894 | | - | (4) A towing debt collector shall not communicate by postcard. |
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| 895 | | - | |
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| 896 | | - | (5) A towing debt collector shall not use any language or symbol on any envelope or in the contents of any communication effected by mail or telegram that indicates that the towing debt collector is in the debt collection business or that the communication relates to the collection of a debt. |
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| 897 | | - | |
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| 898 | | - | (6) After the towing debt collector knows the debtor is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorneys name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the towing debt collector. |
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| 899 | | - | |
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| 900 | | - | (c) (1) In any communication in connection with towing debt collection, a towing debt collector shall not, without the prior consent of the debtor given directly to the towing debt collector or the express permission of a court of competent jurisdiction, a towing debt collector may not communicate with a debtor in connection with the collection of any towing debt. |
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| 901 | | - | |
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| 902 | | - | (A) At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a towing debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumers location. |
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| 903 | | - | |
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| 904 | | - | (B) If the towing debt collector knows the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the towing debt collector or unless the attorney consents to direct communication with the debtor. |
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| 905 | | - | |
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| 906 | | - | (C) At the consumers place of employment if the towing debt collector knows or has reason to know that the debtors employer prohibits the debtor from receiving such communication. |
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| 907 | | - | |
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| 908 | | - | (2) Except as provided in subdivision (a), without the prior consent of the debtor given directly to the towing debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a towing debt collector may not communicate, in connection with the collection of any towing debt, with any person other than the debtor, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the towing debt collector. |
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| 909 | | - | |
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| 910 | | - | (3) When ceasing communication with a debtor, the towing debt collector shall do all of the following: |
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| 911 | | - | |
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| 912 | | - | (A) Advise the consumer that the towing debt collectors further efforts are being terminated. |
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| 913 | | - | |
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| 914 | | - | (B) Notify the debtor that the towing debt collector or creditor may invoke specified remedies which are ordinarily invoked by such towing debt collector or entity. |
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| 915 | | - | |
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| 916 | | - | (C) Where applicable, notify the debtor that the towing debt collector or entity intends to invoke a specified remedy. If the notice from the debtor is made by mail, notification shall be complete upon receipt. |
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| 917 | | - | |
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| 918 | | - | (4) For the purpose of this section, the term debtor includes the debtors spouse, parent, if the debtor is a minor, guardian, executor, or administrator. |
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| 919 | | - | |
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| 920 | | - | (d) A towing debt collector shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: |
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| 921 | | - | |
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| 922 | | - | (1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person. |
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| 923 | | - | |
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| 924 | | - | (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. |
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| 925 | | - | |
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| 926 | | - | (3) The publication of a list of debtors who allegedly refuse to pay towing debts, except to a consumer reporting agency or to persons meeting the requirements of Title 15, including Section 1681a(f) or 1681b(a)(3) of the United States Code. |
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| 927 | | - | |
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| 928 | | - | (4) The advertisement for sale of any towing debt to coerce payment of the debt. |
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| 929 | | - | |
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| 930 | | - | (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. |
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| 931 | | - | |
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| 932 | | - | (6) Except as provided in subdivision (a), the placement of telephone calls without meaningful disclosure of the callers identity. |
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| 933 | | - | |
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| 934 | | - | (e) A government debt collector shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: |
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| 935 | | - | |
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| 936 | | - | (1) The false representation or implication that the government debt collector is vouched for, bonded by, or affiliated with the United States government, the State of California, or any state or public agency, including the use of any badge, uniform, or facsimile thereof. |
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| 937 | | - | |
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| 938 | | - | (2) The false representation of the character, amount, or legal status of any debt, any services rendered, or compensation which may be lawfully received by any debt collector for the collection of a debt. |
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| 939 | | - | |
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| 940 | | - | (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney. |
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| 941 | | - | |
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| 942 | | - | (4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the towing debt collector or entity intends to take such action. |
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| 943 | | - | |
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| 944 | | - | (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. |
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| 945 | | - | |
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| 946 | | - | (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt, or become subject to any practice prohibited by this section. |
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| 947 | | - | |
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| 948 | | - | (7) The false representation or implication that the debtor committed any crime or other conduct in order to disgrace the debtor. |
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| 949 | | - | |
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| 950 | | - | (8) Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed government debt is disputed. |
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| 951 | | - | |
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| 952 | | - | (9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state, or which creates a false impression as to its source, authorization, or approval. |
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| 953 | | - | |
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| 954 | | - | (10) The use of any false representation or deceptive means to collect or attempt to collect any government debt or to obtain information concerning a debtor. |
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| 955 | | - | |
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| 956 | | - | (11) The failure to disclose in the initial written communication with the debtor and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the towing debt collector is attempting to collect a towing debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a towing debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. |
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| 957 | | - | |
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| 958 | | - | (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. |
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| 959 | | - | |
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| 960 | | - | (13) The false representation or implication that documents are legal process. |
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| 961 | | - | |
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| 962 | | - | (14) The use of any business, company, or organization name other than the true name of the debt collectors business, company, or organization. |
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| 963 | | - | |
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| 964 | | - | (15) The false representation or implication that documents are not legal process forms or do not require action by the consumer. |
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| 965 | | - | |
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| 966 | | - | (16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency. |
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| 967 | | - | |
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| 968 | | - | (f) A towing debt collector may not use unfair or unconscionable means to collect or attempt to collect any towing debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: |
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| 969 | | - | |
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| 970 | | - | (1) The collection of any amount, including any interest, fee, charge, penalty, or expense incidental to the original obligation, unless such amount is expressly permitted by law. |
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| 971 | | - | |
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| 972 | | - | (2) The acceptance by a towing debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the towing debt collectors intent to deposit such check or instrument not more than 10 business days nor less than three business days prior to such deposit. |
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| 973 | | - | |
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| 974 | | - | (3) The solicitation by a towing debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution. |
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| 975 | | - | |
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| 976 | | - | (4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on any check or instrument. |
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| 977 | | - | |
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| 978 | | - | (5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees. |
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| 979 | | - | |
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| 980 | | - | (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if: |
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| 981 | | - | |
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| 982 | | - | (A) There is no present right to possession of the property claimed as collateral through an enforceable security interest. |
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| 983 | | - | |
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| 984 | | - | (B) There is no present intention to take possession of the property. |
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| 985 | | - | |
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| 986 | | - | (C) The property is exempt by law from such dispossession or disablement. |
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| 987 | | - | |
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| 988 | | - | (7) Communicating with a debtor regarding a towing debt by postcard. |
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| 989 | | - | |
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| 990 | | - | (8) Using any language or symbol, other than the towing debt collectors address, on any envelope when communicating with a debtor by use of mail or by telegram or other medium of written communication, except that a government debt collector may use his or her business name if such name does not indicate that he or she is in the debt collection business. |
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| 991 | | - | |
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| 992 | | - | (g) (1) Within five days after the initial communication with a debtor in connection with the collection of any towing debt, a towing debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the consumer a written notice containing all of the following: |
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| 993 | | - | |
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| 994 | | - | (A) The amount of the debt. |
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| 995 | | - | |
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| 996 | | - | (B) The name of the entity to which the debt is owed. |
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| 997 | | - | |
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| 998 | | - | (C) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the towing debt collector. |
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| 999 | | - | |
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| 1000 | | - | (D) A statement that if the debtor notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the debtor and a copy of the verification or judgment will be mailed to the debtor by the debt collector. |
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| 1001 | | - | |
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| 1002 | | - | (E) A statement that, upon the debtors written request within the 30-day period, the towing debt collector will provide the debtor with the name and address of the originating public agency, if different from the current public agency or other entity that owns the debt. |
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| 1003 | | - | |
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| 1004 | | - | (2) If the debtor notifies the debt collector in writing within the 30-day period after receiving notice that the debt, or any portion thereof, is disputed, or that the debtor requests the name and address of the originating public agency, the towing debt collector shall cease collection of the debt, or any disputed portion thereof, until the towing debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the originating public agency, and a copy of the verification or judgment, or name and address of the originating public agency, is mailed to the debtor by the debt collector. Collection activities and communications that do not otherwise violate this section may continue during the 30-day period referred to in paragraph (1) unless the debtor has notified the towing debt collector in writing that the debt, or any portion of the debt, is disputed or that the debtor requests the name and address of the originating public agency. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the debtors right to dispute the debt or request the name and address of the originating public agency. |
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| 1005 | | - | |
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| 1006 | | - | (3) The failure of a debtor to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the debtor. |
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| 1007 | | - | |
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| 1008 | | - | (4) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subdivision (a). |
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| 1009 | | - | |
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| 1010 | | - | (5) The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by Title 26 of the United States Code, Title V of the Gramm-Leach-Bliley Act, Section 6801 et seq. of Title 15 of the United States Code, or any provision of federal or state law relating to notice of data security breach or privacy, or any regulation prescribed under any provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section. |
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| 1011 | | - | |
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| 1012 | | - | (h) If any debtor owes multiple debts and makes any single payment to any towing debt collector with respect to such debts, the towing debt collector may not apply that payment to any debt which is disputed by the debtor and, where applicable, shall apply such payment in accordance with the debtors directions. |
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| 1013 | | - | |
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| 1014 | | - | (i) (1) Any towing debt collector who brings any legal action on a towing debt against any debtor shall do either of the following: |
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| 1015 | | - | |
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| 1016 | | - | (A) In the case of an action to enforce an interest in real property securing the debtors obligation, bring such action only in a judicial district or similar legal entity in which such real property is located. |
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| 1017 | | - | |
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| 1018 | | - | (B) In the case of an action not described in subparagraph (A), bring an action only in the judicial district or similar legal entity in which such debtor incurred the debt sued upon or in which such debtor resides at the commencement of the action. |
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| 1019 | | - | |
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| 1020 | | - | (2) Nothing in this section shall be construed to authorize the bringing of legal actions by government debt collectors. |
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| 1021 | | - | |
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| 1022 | | - | (j) (1) It is unlawful to design, compile, and furnish any form knowing that form would be used to create the false belief in a debtor that a person other than the public agency or current owner of the towing debt is participating in the collection of or in an attempt to collect a debt such debtor allegedly owes the entity or current owner, when in fact such person is not so participating. |
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| 1023 | | - | |
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| 1024 | | - | (2) A person who violates this section shall be liable to the same extent and in the same manner as a government debt collector is liable under Section 1692k of Title 15 of the United States Code for failure to comply with a provision of this section. |
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| 1025 | | - | |
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| 1026 | | - | (k) (1) Except as otherwise provided by this section, any towing debt collector who fails to comply with any provision of this section with respect to any person is liable to such person in an amount equal to the sum of the following: |
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| 1027 | | - | |
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| 1028 | | - | (A) Any actual damage sustained by such person as a result of such failure. |
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| 1029 | | - | |
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| 1030 | | - | (B) (i) In the case of any action by an individual, such additional damages as the court may allow, but not exceeding one thousand dollars ($1,000). |
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| 1031 | | - | |
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| 1032 | | - | (ii) In the case of a class action, an amount for each named plaintiff as could be recovered under clause (i), and any amount the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 per centum of the net worth of the towing debt collector. |
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| 1033 | | - | |
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| 1034 | | - | (C) In the case of a successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs. |
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| 1035 | | - | |
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| 1036 | | - | (2) In determining the amount of liability in any action under subdivision (a), the court shall consider, among other relevant factors, both of the following: |
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| 1037 | | - | |
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| 1038 | | - | (A) In any individual action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional. |
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| 1039 | | - | |
|---|
| 1040 | | - | (B) In any class action under this section, the frequency and persistence of noncompliance by the towing debt collector, the nature of that noncompliance, the resources of the towing debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional. |
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| 1041 | | - | |
|---|
| 1042 | | - | (3) A towing debt collector may not be held liable in any action brought under this section if the towing debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any error. |
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| 1043 | | - | |
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| 1044 | | - | (l) Paragraph (11) of subdivision (e) and subdivision (g) shall not apply to any person specified in Section 1692a(6)(A) and (B) of Title 15 of the United States Code or that persons principal. The references to federal codes in this section refer to those codes as they read on January 1, 2001. |
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| 1045 | | - | |
|---|
| 1046 | | - | 1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable. |
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| 1047 | | - | |
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| 1048 | | - | |
|---|
| 1049 | | - | |
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| 1050 | | - | 1788.110. Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable. |
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| 1051 | | - | |
|---|
| 1052 | | - | SEC. 3. Article 3 (commencing with Section 22857) is added to Chapter 10 of Division 11 of the Vehicle Code, to read: Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both.(b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections:(c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :](d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome.(g) There shall be no separate charge for translation services.(h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow.(b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith.(c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner.(d) 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. |
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| 1053 | | - | |
|---|
| 1054 | | - | SEC. 3. Article 3 (commencing with Section 22857) is added to Chapter 10 of Division 11 of the Vehicle Code, to read: |
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| 1055 | | - | |
|---|
| 1056 | | - | ### SEC. 3. |
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| 1057 | | - | |
|---|
| 1058 | | - | Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both.(b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections:(c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :](d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome.(g) There shall be no separate charge for translation services.(h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow.(b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith.(c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner.(d) 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. |
|---|
| 1059 | | - | |
|---|
| 1060 | | - | Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both.(b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections:(c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :](d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome.(g) There shall be no separate charge for translation services.(h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section.22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow.(b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith.(c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner.(d) 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. |
|---|
| 1061 | | - | |
|---|
| 1062 | | - | Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES |
|---|
| 1063 | | - | |
|---|
| 1064 | | - | Article 3. RECOVERY OF TOWED OR IMPOUNDED VEHICLES |
|---|
| 1065 | | - | |
|---|
| 1066 | | - | 22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both.(b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections:(c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title:[placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :](d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following:(1) Provide written translation services.(2) Provide oral translation services.(e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves.(f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome.(g) There shall be no separate charge for translation services.(h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section. |
|---|
| 1067 | | - | |
|---|
| 1068 | | - | |
|---|
| 1069 | | - | |
|---|
| 1070 | | - | 22857. (a) For the purposes of this article a person means a law enforcement agency, city, county, the state, a tow yard, storage facility, or an impounding yard, that charges for towing or storage or both. |
|---|
| 1071 | | - | |
|---|
| 1072 | | - | (b) A persons oral and written communications with vehicle owners including the issuance of notices under Sections 22852, 22658, and 40220 and under Sections 3071 and 3072, inclusive, of the Civil Code, and the persons provision of storage hearings as provided under Section 14602.6 are subject to the following language access protections: |
|---|
| 1073 | | - | |
|---|
| 1074 | | - | (c) The following notification shall be placed in no smaller than 12 point font on the notices required by this title: |
|---|
| 1075 | | - | |
|---|
| 1076 | | - | [placeholder for actual translations in Spanish, Chinese, Korean, Tagalog, and Vietnamese of Translation of this document is available upon request. To request a translated version call ____ or write to ____ :] |
|---|
| 1077 | | - | |
|---|
| 1078 | | - | (d) In the event that a government or towing debt collector or person as defined in Section 1788.70 or Section 1788.90 has notice that a debtor has limited English proficiency, by either verbal or written communication or by receipt of language access information from the entity with whom the debt originated, then that debt collector or person shall do both of the following: |
|---|
| 1079 | | - | |
|---|
| 1080 | | - | (1) Provide written translation services. |
|---|
| 1081 | | - | |
|---|
| 1082 | | - | (2) Provide oral translation services. |
|---|
| 1083 | | - | |
|---|
| 1084 | | - | (e) Under this title, debt collectors and persons in subdivision (a) are only obligated to provide written and oral translation services if the debtors primary language is Spanish, Chinese, Korean, Tagalog, Vietnamese, or a language that the Department of Motor Vehicles has identified as the primary language of more than 5 percent of the people it serves. |
|---|
| 1085 | | - | |
|---|
| 1086 | | - | (f) Under this title, debt collectors and persons in subdivision (a) are not obligated to provide written and oral translation services if doing so would be unduly burdensome. Contracting with a language access hotline and providing translations of documents already translated by the DMV or a certified translator, that are available free of charge, are not unduly burdensome. |
|---|
| 1087 | | - | |
|---|
| 1088 | | - | (g) There shall be no separate charge for translation services. |
|---|
| 1089 | | - | |
|---|
| 1090 | | - | (h) The California Tow Truck Association may work in partnership with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice to develop the translated materials identified in this section within one year of the operative date of this section. The California Tow Truck Association may make these translated materials available on its Internet Web site, free of charge, within one year and three months of the operative date of this section. |
|---|
| 1091 | | - | |
|---|
| 1092 | | - | 22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow.(b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith.(c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner.(d) 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. |
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| 1093 | | - | |
|---|
| 1094 | | - | |
|---|
| 1095 | | - | |
|---|
| 1096 | | - | 22857.1. (a) If a person violates paragraph (1) of subdivision (c) of Section 22651.07 or subparagraph (A) of paragraph (1) of subdivision (n) of Section 22658, that person shall be liable in an individual action and the liability shall be in an amount equal to the sum of a penalty in such amount as the court will allow which shall not be less than one hundred dollars ($100) and shall not be greater than one thousand dollars ($1,000) in actual damages sustained as a result of the violation, and in the case of willful violations punitive damages in such amount as the court will allow. |
|---|
| 1097 | | - | |
|---|
| 1098 | | - | (b) In the case of any action to enforce any liability under this section, the prevailing party shall be entitled to costs of the action. Reasonable attorneys fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing plaintiff. Reasonable attorneys fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution or defense of the action was not in good faith. |
|---|
| 1099 | | - | |
|---|
| 1100 | | - | (c) A person shall have no civil liability under this article if, within 24 hours either after discovering a violation that is able to be cured, or after the receipt of a written notice of such violation, the person notifies the vehicle or property owner of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the vehicle or property owner. |
|---|
| 1101 | | - | |
|---|
| 1102 | | - | (d) 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. |
|---|
| 1103 | | - | |
|---|
| 1104 | | - | SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
|---|
| 1105 | | - | |
|---|
| 1106 | | - | SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
|---|
| 1107 | | - | |
|---|
| 1108 | | - | SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 1109 | | - | |
|---|
| 1110 | | - | ### SEC. 4. |
|---|
| 572 | + | ### SEC. 18. |
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