88R18894 MLH-F
By: Meyer, Plesa H.B. No. 4641
A BILL TO BE ENTITLED
AN ACT
relating to the collection of consumer debt incurred by certain
individuals as a result of identity theft.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 392, Finance Code, is
amended by adding Section 392.308 to read as follows:
Sec. 392.308. CONSUMER VICTIM OF IDENTITY THEFT. (a) In
this section:
(1) "Family violence" has the meaning assigned by
Section 71.004, Family Code.
(2) "Human trafficking" means conduct that
constitutes an offense under Section 20A.02, Penal Code.
(3) "Identity theft" means:
(A) a violation of Section 521.051, Business &
Commerce Code, or a substantially similar federal law or law in
another state; or
(B) a criminal offense described by Section
32.51, Penal Code, or a substantially similar federal law or law in
another state.
(4) "Person with a disability" has the meaning
assigned by Section 48.002, Human Resources Code.
(b) This section does not apply to consumer debt that is a
home loan, as defined by Chapter 343.
(c) A creditor, debt collector, or third-party debt
collector may not attempt to collect a consumer debt or a portion of
a consumer debt if the consumer provides:
(1) a criminal complaint alleging the commission of an
offense under Section 32.51, Penal Code, or a substantially similar
federal law or law in another state, for which the consumer was a
victim, accompanied by a statement identifying the consumer debt or
the portion of consumer debt that resulted from the offense;
(2) a court order issued under Section 521.103,
Business & Commerce Code, or a substantially similar federal law or
law in another state, declaring the consumer a victim of identity
theft; or
(3) if the consumer is a victim of family violence, a
victim of human trafficking, or a person with a disability, an
affidavit or unsworn declaration under Chapter 132, Civil Practice
and Remedies Code, declaring the consumer a victim of identity
theft.
(d) An affidavit or unsworn declaration under Subsection
(c)(3) must include:
(1) a statement that the consumer is a victim of
identity theft;
(2) documentation verifying the consumer's identity,
which may include a copy of the consumer's passport or a copy of a
driver's license or state identification card issued to the
consumer by the Department of Public Safety;
(3) a copy of a Federal Trade Commission identity
theft victim's report, completed, signed, and filed by the
consumer:
(A) affirming that the consumer is a victim of
identity theft; and
(B) identifying the consumer debt or affected
portion of the consumer debt incurred as a result of identity theft;
and
(4) supporting documentation that the consumer is:
(A) a victim of family violence, as demonstrated
by:
(i) a copy of one or more of the following
orders protecting the tenant or an occupant from family violence:
(a) a temporary ex parte order issued
under Chapter 83, Family Code;
(b) a protective order issued under
Chapter 85, Family Code; or
(c) an order of emergency protection
under Article 17.292, Code of Criminal Procedure; or
(ii) a copy of documentation of the family
violence against the tenant or an occupant from:
(a) a licensed health care services
provider who examined the victim;
(b) a licensed mental health services
provider who examined or evaluated the victim; or
(c) an advocate as defined by Section
93.001, Family Code, who assisted the victim;
(B) a victim of human trafficking, as
demonstrated by:
(i) a determination from a federal, state,
or tribal governmental entity;
(ii) a determination from a nongovernmental
organization authorized to make a determination that a consumer is
a victim of human trafficking by a governmental entity under
Subparagraph (i);
(iii) a determination from members of a
human trafficking task force, including a victim service provider
affiliated with a nongovernmental organization or task force that
is authorized to make a determination that a consumer is a victim of
human trafficking by a governmental entity described by
Subparagraph (i);
(iv) a determination that the consumer is a
victim of human trafficking from a court of competent jurisdiction
in a case where the issue of whether the consumer is a victim of
human trafficking is a central issue of the case; or
(v) a statement attesting that the consumer
is a victim of human trafficking, signed or certified by the
consumer and a person described by Subparagraph (i), (ii), (iii),
or (iv); or
(C) a person with a disability.
(e) A creditor, debt collector, or third-party debt
collector who receives notice that a consumer debt is a result of
identity theft from a victim of identity theft in accordance with
Subsection (c):
(1) shall immediately cease efforts to collect the
disputed debt or disputed portion of the debt from the victim of
identity theft;
(2) shall send to each person who has previously
received a report relating to that debt from the creditor, debt
collector, or third-party debt collector notice that the debt is
disputed under this section and not collectable from the victim of
identity theft;
(3) may not sell the debt or transfer it for
consideration, except to collect the debt from a responsible person
other than the victim of identity theft; and
(4) may, if the disputed debt or disputed portion of
the debt is secured by tangible personal property, enforce the
security interest under Chapter 9, Business & Commerce Code, but
may not collect or seek to collect any deficiency from the victim of
identity theft.
(f) If a creditor, debt collector, or third-party debt
collector has a good faith reason to believe that a consumer has
disputed a consumer debt or portion of a consumer debt under this
section based on a material misrepresentation that the consumer is
a victim of identity theft, the creditor, debt collector, or
third-party debt collector may file suit in a court of competent
jurisdiction to collect the debt from the consumer, unless the
alleged perpetrator of identity theft is named in documentation
provided by the consumer under Subsection (c).
(g) In a suit under Subsection (f), the creditor, debt
collector, or third-party debt collector must:
(1) show by clear and convincing evidence that the
consumer is not a victim of identity theft; and
(2) if the consumer prevails in the suit, pay the
consumer's court costs, attorney's fees, and damages.
SECTION 2. This Act takes effect September 1, 2023.