2009 California Civil Code - Section 1788.10-1788.18 :: Article 2. Debt Collector Responsibilities

CIVIL CODE
SECTION 1788.10-1788.18

1788.10.  No debt collector shall collect or attempt to collect a
consumer debt by means of the following conduct:
   (a) The use, or threat of use, of physical force or violence or
any criminal means to cause harm to the person, or the reputation, or
the property of any person;
   (b) The threat that the failure to pay a consumer debt will result
in an accusation that the debtor has committed a crime where such
accusation, if made, would be false;
   (c) The communication of, or threat to communicate to any person
the fact that a debtor has engaged in conduct, other than the failure
to pay a consumer debt, which the debt collector knows or has reason
to believe will defame the debtor;
   (d) The threat to the debtor to sell or assign to another person
the obligation of the debtor to pay a consumer debt, with an
accompanying false representation that the result of such sale or
assignment would be that the debtor would lose any defense to the
consumer debt;
   (e) The threat to any person that nonpayment of the consumer debt
may result in the arrest of the debtor or the seizure, garnishment,
attachment or sale of any property or the garnishment or attachment
of wages of the debtor, unless such action is in fact contemplated by
the debt collector and permitted by the law; or
   (f) The threat to take any action against the debtor which is
prohibited by this title.

1788.11.  No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
   (a) Using obscene or profane language;
   (b) Placing telephone calls without disclosure of the caller's
identity, provided that an employee of a licensed collection agency
may identify himself by using his registered alias name as long as he
correctly identifies the agency he represents;
   (c) Causing expense to any person for long distance telephone
calls, telegram fees or charges for other similar communications, by
misrepresenting to such person the purpose of such telephone call,
telegram or similar communication;
   (d) Causing a telephone to ring repeatedly or continuously to
annoy the person called; or
   (e) Communicating, by telephone or in person, with the debtor with
such frequency as to be unreasonable and to constitute an harassment
to the debtor under the circumstances.

1788.12.  No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
   (a) Communicating with the debtor's employer regarding the debtor'
s consumer debt unless such a communication is necessary to the
collection of the debt, or unless the debtor or his attorney has
consented in writing to such communication. A communication is
necessary to the collection of the debt only if it is made for the
purposes of verifying the debtor's employment, locating the debtor,
or effecting garnishment, after judgment, of the debtor's wages, or
in the case of a medical debt for the purpose of discovering the
existence of medical insurance. Any such communication, other than a
communication in the case of a medical debt by a health care provider
or its agent for the purpose of discovering the existence of medical
insurance, shall be in writing unless such written communication
receives no response within 15 days and shall be made only as many
times as is necessary to the collection of the debt. Communications
to a debtor's employer regarding a debt shall not contain language
that would be improper if the communication were made to the debtor.
One communication solely for the purpose of verifying the debtor's
employment may be oral without prior written contact.
   (b) Communicating information regarding a consumer debt to any
member of the debtor's family, other than the debtor's spouse or the
parents or guardians of the debtor who is either a minor or who
resides in the same household with such parent or guardian, prior to
obtaining a judgment against the debtor, except where the purpose of
the communication is to locate the debtor, or where the debtor or his
attorney has consented in writing to such communication;
   (c) Communicating to any person any list of debtors which
discloses the nature or existence of a consumer debt, commonly known
as "deadbeat lists", or advertising any consumer debt for sale, by
naming the debtor; or
   (d) Communicating with the debtor by means of a written
communication that displays or conveys any information about the
consumer debt or the debtor other than the name, address and
telephone number of the debtor and the debt collector and which is
intended both to be seen by any other person and also to embarrass
the debtor.
   (e) Notwithstanding the foregoing provisions of this section, the
disclosure, publication or communication by a debt collector of
information relating to a consumer debt or the debtor to a consumer
reporting agency or to any other person reasonably believed to have a
legitimate business need for such information shall not be deemed to
violate this title.

1788.13.  No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
   (a) Any communication with the debtor other than in the name
either of the debt collector or the person on whose behalf the debt
collector is acting;
   (b) Any false representation that any person is an attorney or
counselor at law;
   (c) Any communication with a debtor in the name of an attorney or
counselor at law or upon stationery or like written instruments
bearing the name of the attorney or counselor at law, unless such
communication is by an attorney or counselor at law or shall have
been approved or authorized by such attorney or counselor at law;
   (d) The representation that any debt collector is vouched for,
bonded by, affiliated with, or is an instrumentality, agent or
official of any federal, state or local government or any agency of
federal, state or local government, unless the collector is actually
employed by the particular governmental agency in question and is
acting on behalf of such agency in the debt collection matter;
   (e) The false representation that the consumer debt may be
increased by the addition of attorney's fees, investigation fees,
service fees, finance charges, or other charges if, in fact, such
fees or charges may not legally be added to the existing obligation;
   (f) The false representation that information concerning a debtor'
s failure or alleged failure to pay a consumer debt has been or is
about to be referred to a consumer reporting agency;
   (g) The false representation that a debt collector is a consumer
reporting agency;
   (h) The false representation that collection letters, notices or
other printed forms are being sent by or on behalf of a claim,
credit, audit or legal department;
   (i) The false representation of the true nature of the business or
services being rendered by the debt collector;
   (j) The false representation that a legal proceeding has been, is
about to be, or will be instituted unless payment of a consumer debt
is made;
   (k) The false representation that a consumer debt has been, is
about to be, or will be sold, assigned, or referred to a debt
collector for collection; or
   (l) Any communication by a licensed collection agency to a debtor
demanding money unless the claim is actually assigned to the
collection agency.

1788.14.  No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
   (a) Obtaining an affirmation from a debtor of a consumer debt
which has been discharged in bankruptcy, without clearly and
conspicuously disclosing to the debtor, in writing, at the time such
affirmation is sought, the fact that the debtor is not legally
obligated to make such affirmation;
   (b) Collecting or attempting to collect from the debtor the whole
or any part of the debt collector's fee or charge for services
rendered, or other expense incurred by the debt collector in the
collection of the consumer debt, except as permitted by law; or
   (c) Initiating communications, other than statements of account,
with the debtor with regard to the consumer debt, when the debt
collector has been previously notified in writing by the debtor's
attorney that the debtor is represented by such attorney with respect
to the consumer debt and such notice includes the attorney's name
and address and a request by such attorney that all communications
regarding the consumer debt be addressed to such attorney, unless the
attorney fails to answer correspondence, return telephone calls, or
discuss the obligation in question. This subdivision shall not apply
where prior approval has been obtained from the debtor's attorney, or
where the communication is a response in the ordinary course of
business to a debtor's inquiry.

1788.15.  (a) No debt collector shall collect or attempt to collect
a consumer debt by means of judicial proceedings when the debt
collector knows that service of process, where essential to
jurisdiction over the debtor or his property, has not been legally
effected.
   (b) No debt collector shall collect or attempt to collect a
consumer debt, other than one reduced to judgment, by means of
judicial proceedings in a county other than the county in which the
debtor has incurred the consumer debt or the county in which the
debtor resides at the time such proceedings are instituted, or
resided at the time the debt was incurred.

1788.16.  It is unlawful, with respect to attempted collection of a
consumer debt, for a debt collector, creditor, or an attorney, to
send a communication which simulates legal or judicial process or
which gives the appearance of being authorized, issued, or approved
by a governmental agency or attorney when it is not. Any violation of
the provisions of this section is a misdemeanor punishable by
imprisonment in the county jail not exceeding six months, or by a
fine not exceeding two thousand five hundred dollars ($2,500) or by
both.

1788.17.  Notwithstanding any other provision of this title, every
debt collector collecting or attempting to collect a consumer debt
shall comply with the provisions of Sections 1692b to 1692j,
inclusive, of, and shall be subject to the remedies in Section 1692k
of, Title 15 of the United States Code. However, subsection (11) of
Section 1692e and Section 1692g shall not apply to any person
specified in paragraphs (A) and (B) of subsection (6) of Section
1692a of Title 15 of the United States Code or that person's
principal. The references to federal codes in this section refer to
those codes as they read January 1, 2001.

1788.18.  (a) Upon receipt from a debtor of all of the following, a
debt collector shall cease collection activities until completion of
the review provided in subdivision (d):
   (1) A copy of a police report filed by the debtor alleging that
the debtor is the victim of an identity theft crime, including, but
not limited to, a violation of Section 530.5 of the Penal Code, for
the specific debt being collected by the debt collector.
   (2) The debtor's written statement that the debtor claims to be
the victim of identity theft with respect to the specific debt being
collected by the debt collector.
   (b) The written statement described in paragraph (2) of
subdivision (a) shall consist of any of the following:
   (1) A Federal Trade Commission's Affidavit of Identity Theft.
   (2) A written statement that contains the content of the Identity
Theft Victim's Fraudulent Account Information Request offered to the
public by the California Office of Privacy Protection.
   (3) A written statement that certifies that the representations
are true, correct, and contain no material omissions of fact to the
best knowledge and belief of the person submitting the certification.
A person submitting the certification who declares as true any
material matter pursuant to this subdivision that he or she knows to
be false is guilty of a misdemeanor. The statement shall contain or
be accompanied by the following, to the extent that an item listed
below is relevant to the debtor's allegation of identity theft with
respect to the debt in question:
   (A) A statement that the debtor is a victim of identity theft.
   (B) A copy of the debtor's driver's license or identification
card, as issued by the state.
   (C) Any other identification document that supports the statement
of identity theft.
   (D) Specific facts supporting the claim of identity theft, if
available.
   (E) Any explanation showing that the debtor did not incur the
debt.
   (F) Any available correspondence disputing the debt after
transaction information has been provided to the debtor.
   (G) Documentation of the residence of the debtor at the time of
the alleged debt. This may include copies of bills and statements,
such as utility bills, tax statements, or other statements from
businesses sent to the debtor, showing that the debtor lived at
another residence at the time the debt was incurred.
   (H) A telephone number for contacting the debtor concerning any
additional information or questions, or direction that further
communications to the debtor be in writing only, with the mailing
address specified in the statement.
   (I) To the extent the debtor has information concerning who may
have incurred the debt, the identification of any person whom the
debtor believes is responsible.
   (J) An express statement that the debtor did not authorize the use
of the debtor's name or personal information for incurring the debt.
   (K) The certification required pursuant to this paragraph shall be
sufficient if it is in substantially the following form:

  "I certify the representations made are true,
  correct,
  and
  contain no material omissions of fact.
  _______________________________________ _________"
                                          (Signature
              (Date and Place)                 )

   (c) If a debtor notifies a debt collector orally that he or she is
a victim of identity theft, the debt collector shall notify the
debtor, orally or in writing, that the debtor's claim must be in
writing. If a debtor notifies a debt collector in writing that he or
she is a victim of identity theft, but omits information required
pursuant to subdivision (a) or, if applicable, the certification
required pursuant to paragraph (3) of subdivision (b), if the debt
collector does not cease collection activities, the debt collector
shall provide written notice to the debtor of the additional
information that is required, or the certification required pursuant
to paragraph (3) of subdivision (b), as applicable, or send the
debtor a copy of the Federal Trade Commission's Affidavit of Identity
Theft form.
   (d) Upon receipt of the complete statement and information
described in subdivision (a), the debt collector shall review and
consider all of the information provided by the debtor and other
information available to the debt collector in its file or from the
creditor. The debt collector may recommence debt collection
activities only upon making a good faith determination that the
information does not establish that the debtor is not responsible for
the specific debt in question. The debt collector's determination
shall be made in a manner consistent with the provisions of
subsection (1) of Section 1692 of Title 15 of the United States Code,
as incorporated by Section 1788.17 of this code. The debt collector
shall notify the debtor in writing of that determination and the
basis for that determination before proceeding with any further
collection activities. The debt collector's determination shall be
based on all of the information provided by the debtor and other
information available to the debt collector in its file or from the
creditor.
   (e) No inference or presumption that the debt is valid or invalid,
or that the debtor is liable or not liable for the debt, shall arise
if the debt collector decides after the review described in
subdivision (d) to cease or recommence the debt collection
activities. The exercise or nonexercise of rights under this section
is not a waiver of any other right or defense of the debtor or debt
collector.
   (f) The statement and supporting documents that comply with
subdivision (a) may also satisfy, to the extent those documents meet
the requirements of, the notice requirement of paragraph (5) of
subdivision (c) of Section 1798.93.
   (g) A debt collector who ceases collection activities under this
section and does not recommence those collection activities shall do
all of the following:
   (1) If the debt collector has furnished adverse information to a
consumer credit reporting agency, notify the agency to delete that
information.
   (2) Notify the creditor that debt collection activities have been
terminated based upon the debtor's claim of identity theft.
   (h) A debt collector who has possession of documents that the
debtor is entitled to request from a creditor pursuant to Section
530.8 of the Penal Code is authorized to provide those documents to
the debtor.
   (i) Notwithstanding subdivision (h) of Section 1788.2, for the
purposes of this section, "debtor" means a natural person, firm,
association, organization, partnership, business trust, company,
corporation, or limited liability company from which a debt collector
seeks to collect a debt that is due and owing or alleged to be due
and owing from the person or entity. The remedies provided by this
title shall apply equally to violations of this section.


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