Texas 2023 - 88th Regular

Texas House Bill HB4641 Compare Versions

Version 1 (Old)

Version 2 (New)

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1	1	88R18894 MLH-F
2	2	By: Meyer, Plesa H.B. No. 4641
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the collection of consumer debt incurred by certain
8	8	individuals as a result of identity theft.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subchapter D, Chapter 392, Finance Code, is
11	11	amended by adding Section 392.308 to read as follows:
12	12	Sec. 392.308. CONSUMER VICTIM OF IDENTITY THEFT. (a) In
13	13	this section:
14	14	(1) "Family violence" has the meaning assigned by
15	15	Section 71.004, Family Code.
16	16	(2) "Human trafficking" means conduct that
17	17	constitutes an offense under Section 20A.02, Penal Code.
18	18	(3) "Identity theft" means:
19	19	(A) a violation of Section 521.051, Business &
20	20	Commerce Code, or a substantially similar federal law or law in
21	21	another state; or
22	22	(B) a criminal offense described by Section
23	23	32.51, Penal Code, or a substantially similar federal law or law in
24	24	another state.
25	25	(4) "Person with a disability" has the meaning
26	26	assigned by Section 48.002, Human Resources Code.
27	27	(b) This section does not apply to consumer debt that is a
28	28	home loan, as defined by Chapter 343.
29	29	(c) A creditor, debt collector, or third-party debt
30	30	collector may not attempt to collect a consumer debt or a portion of
31	31	a consumer debt if the consumer provides:
32	32	(1) a criminal complaint alleging the commission of an
33	33	offense under Section 32.51, Penal Code, or a substantially similar
34	34	federal law or law in another state, for which the consumer was a
35	35	victim, accompanied by a statement identifying the consumer debt or
36	36	the portion of consumer debt that resulted from the offense;
37	37	(2) a court order issued under Section 521.103,
38	38	Business & Commerce Code, or a substantially similar federal law or
39	39	law in another state, declaring the consumer a victim of identity
40	40	theft; or
41	41	(3) if the consumer is a victim of family violence, a
42	42	victim of human trafficking, or a person with a disability, an
43	43	affidavit or unsworn declaration under Chapter 132, Civil Practice
44	44	and Remedies Code, declaring the consumer a victim of identity
45	45	theft.
46	46	(d) An affidavit or unsworn declaration under Subsection
47	47	(c)(3) must include:
48	48	(1) a statement that the consumer is a victim of
49	49	identity theft;
50	50	(2) documentation verifying the consumer's identity,
51	51	which may include a copy of the consumer's passport or a copy of a
52	52	driver's license or state identification card issued to the
53	53	consumer by the Department of Public Safety;
54	54	(3) a copy of a Federal Trade Commission identity
55	55	theft victim's report, completed, signed, and filed by the
56	56	consumer:
57	57	(A) affirming that the consumer is a victim of
58	58	identity theft; and
59	59	(B) identifying the consumer debt or affected
60	60	portion of the consumer debt incurred as a result of identity theft;
61	61	and
62	62	(4) supporting documentation that the consumer is:
63	63	(A) a victim of family violence, as demonstrated
64	64	by:
65	65	(i) a copy of one or more of the following
66	66	orders protecting the tenant or an occupant from family violence:
67	67	(a) a temporary ex parte order issued
68	68	under Chapter 83, Family Code;
69	69	(b) a protective order issued under
70	70	Chapter 85, Family Code; or
71	71	(c) an order of emergency protection
72	72	under Article 17.292, Code of Criminal Procedure; or
73	73	(ii) a copy of documentation of the family
74	74	violence against the tenant or an occupant from:
75	75	(a) a licensed health care services
76	76	provider who examined the victim;
77	77	(b) a licensed mental health services
78	78	provider who examined or evaluated the victim; or
79	79	(c) an advocate as defined by Section
80	80	93.001, Family Code, who assisted the victim;
81	81	(B) a victim of human trafficking, as
82	82	demonstrated by:
83	83	(i) a determination from a federal, state,
84	84	or tribal governmental entity;
85	85	(ii) a determination from a nongovernmental
86	86	organization authorized to make a determination that a consumer is
87	87	a victim of human trafficking by a governmental entity under
88	88	Subparagraph (i);
89	89	(iii) a determination from members of a
90	90	human trafficking task force, including a victim service provider
91	91	affiliated with a nongovernmental organization or task force that
92	92	is authorized to make a determination that a consumer is a victim of
93	93	human trafficking by a governmental entity described by
94	94	Subparagraph (i);
95	95	(iv) a determination that the consumer is a
96	96	victim of human trafficking from a court of competent jurisdiction
97	97	in a case where the issue of whether the consumer is a victim of
98	98	human trafficking is a central issue of the case; or
99	99	(v) a statement attesting that the consumer
100	100	is a victim of human trafficking, signed or certified by the
101	101	consumer and a person described by Subparagraph (i), (ii), (iii),
102	102	or (iv); or
103	103	(C) a person with a disability.
104	104	(e) A creditor, debt collector, or third-party debt
105	105	collector who receives notice that a consumer debt is a result of
106	106	identity theft from a victim of identity theft in accordance with
107	107	Subsection (c):
108	108	(1) shall immediately cease efforts to collect the
109	109	disputed debt or disputed portion of the debt from the victim of
110	110	identity theft;
111	111	(2) shall send to each person who has previously
112	112	received a report relating to that debt from the creditor, debt
113	113	collector, or third-party debt collector notice that the debt is
114	114	disputed under this section and not collectable from the victim of
115	115	identity theft;
116	116	(3) may not sell the debt or transfer it for
117	117	consideration, except to collect the debt from a responsible person
118	118	other than the victim of identity theft; and
119	119	(4) may, if the disputed debt or disputed portion of
120	120	the debt is secured by tangible personal property, enforce the
121	121	security interest under Chapter 9, Business & Commerce Code, but
122	122	may not collect or seek to collect any deficiency from the victim of
123	123	identity theft.
124	124	(f) If a creditor, debt collector, or third-party debt
125	125	collector has a good faith reason to believe that a consumer has
126	126	disputed a consumer debt or portion of a consumer debt under this
127	127	section based on a material misrepresentation that the consumer is
128	128	a victim of identity theft, the creditor, debt collector, or
129	129	third-party debt collector may file suit in a court of competent
130	130	jurisdiction to collect the debt from the consumer, unless the
131	131	alleged perpetrator of identity theft is named in documentation
132	132	provided by the consumer under Subsection (c).
133	133	(g) In a suit under Subsection (f), the creditor, debt
134	134	collector, or third-party debt collector must:
135	135	(1) show by clear and convincing evidence that the
136	136	consumer is not a victim of identity theft; and
137	137	(2) if the consumer prevails in the suit, pay the
138	138	consumer's court costs, attorney's fees, and damages.
139	139	SECTION 2. This Act takes effect September 1, 2023.