BILL NUMBER: AB 1294 CHAPTERED
BILL TEXT
CHAPTER 287
FILED WITH SECRETARY OF STATE SEPTEMBER 4, 2003
APPROVED BY GOVERNOR SEPTEMBER 3, 2003
PASSED THE ASSEMBLY AUGUST 21, 2003
PASSED THE SENATE JULY 21, 2003
AMENDED IN SENATE JULY 15, 2003
AMENDED IN SENATE JUNE 24, 2003
AMENDED IN SENATE JUNE 11, 2003
AMENDED IN ASSEMBLY APRIL 30, 2003
INTRODUCED BY Assembly Member Wiggins
FEBRUARY 21, 2003
An act to add Section 1788.18 to the Civil Code, relating to debt
collection.
LEGISLATIVE COUNSEL'S DIGEST
AB 1294, Wiggins. Debt collectors: responsibilities: identity
theft.
Existing law regulates the activities of debt collectors, and
prohibits a debt collector from asserting that nonpayment of a
consumer debt may result in the seizure or sale of any property or
the garnishment or attachment of wages of a debtor, unless that
action is in fact contemplated by the debt collector and permitted by
law.
This bill would require a debt collector to stop collecting a
consumer debt when an alleged debtor provides the debt collector
certain information, including, but not limited to, information
relating to the alleged debtor's status as a 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 would be guilty of a misdemeanor. The bill would
permit the debt collector to recommence collection activities only
upon a review of certain information and upon the making of a good
faith determination, as specified, that the information provided by
the debtor does not establish that the debtor is not responsible for
the debt. The bill would also require debt collectors to notify
consumer credit reporting agencies and creditors of specified
information.
Because this bill would make it a misdemeanor for a debtor to
include false material in the certification, the bill would create a
new crime, thereby imposing a state-mandated local program.
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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1788.18 is added to the Civil Code, to read:
1788.18. (a) Upon receipt from a debtor of all of the following,
a debt collector shall cease collection activities until completion
of the review provided in subdivision (d):
(1) A copy of a police report filed by the debtor alleging that
the debtor is the victim of an identity theft crime, including, but
not limited to, a violation of Section 530.5 of the Penal Code, for
the specific debt being collected by the debt collector.
(2) The debtor's written statement that the debtor claims to be
the victim of identity theft with respect to the specific debt being
collected by the debt collector.
(b) The written statement described in paragraph (2) of
subdivision (a) shall consist of any of the following:
(1) A Federal Trade Commission's Affidavit of Identity Theft.
(2) A written statement containing the content of the Identity
Theft Victim's Fraudulent Account Information Request offered to the
public by the California Office of Privacy Protection.
(3) A written statement that certifies that the representations
are true, correct, and contain no material omissions of fact to the
best knowledge and belief of the person submitting the certification.
A person submitting the certification who declares as true any
material matter pursuant to this subdivision that he or she knows to
be false is guilty of a misdemeanor. The statement shall contain or
be accompanied by, the following, to the extent that an item listed
below is relevant to the debtor's allegation of identity theft with
respect to the debt in question:
(A) A statement that the debtor is a victim of identity theft.
(B) A copy of the debtor's driver's license or identification
card, as issued by the state.
(C) Any other identification document that supports the statement
of identity theft.
(D) Specific facts supporting the claim of identity theft, if
available.
(E) Any explanation showing that the debtor did not incur the
debt.
(F) Any available correspondence disputing the debt after
transaction information has been provided to the debtor.
(G) Documentation of the residence of the debtor at the time of
the alleged debt. This may include copies of bills and statements,
such as utility bills, tax statements, or other statements from
businesses sent to the debtor, showing that the debtor lived at
another residence at the time the debt was incurred.
(H) A telephone number for contacting the debtor concerning any
additional information or questions, or direction that further
communications to the debtor be in writing only, with the mailing
address specified in the statement.
(I) To the extent the debtor has information concerning who may
have incurred the debt, the identification of any person whom the
debtor believes is responsible.
(J) An express statement that the debtor did not authorize the use
of the debtor's name or personal information for incurring the debt.
(K) The certification required pursuant to this paragraph shall be
sufficient if it is in substantially the following form:
"I certify the representations made are true, correct, and contain no
material omissions of fact.
_______________________________________
___________________________"
(Date and Place) (Signature)
(c) If a debtor notifies a debt collector orally that he or she is
a victim of identity theft, the debt collector shall notify the
consumer, 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 15 U.S.C.
Sec. 1692f(1), as incorporated by Section 1788.17. The debt
collector shall notify the consumer 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.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B 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 XIII B of the California
Constitution.