BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 641  


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          Date of Hearing:  August 19, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          SB 641  
          (Wieckowski) - As Amended July 16, 2015


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          Urgency:  No  State Mandated Local Program:  YesReimbursable:   
          No


          SUMMARY:


          This bill amends the Fair Debt Buying Practices Act to allow an  
          alleged debtor, seeking to defend an action brought by a debt  
          buyer, to make a motion to set aside a default judgment entered  
          against the alleged debtor on or after January 1, 2010 if  
          service of process did not result in actual notice to the  
          alleged debtor.









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          The bill requires the motion to set aside be filed within the  
          earlier of: (a) six years from the entry of the default  
          judgment; or (b) 180 days of the first actual notice of the  
          action.  However, in the case of identity theft or mistaken  
          identity of the alleged debtor, the motion to set aside must be  
          filed within 180 days of the first actual notice of the action  
          regardless of when default judgment was entered.


          FISCAL EFFECT:


          Minor and absorbable costs to Judicial Council; potential  
          increase in caseload, though likely modest, to state courts.


          COMMENTS:


          1)Purpose.  According to the author, prior to the enactment of  
            the Fair Debt Buying Practices Act in 2013 (FDBPA), debt  
            buyers were not required to provide courts with evidence that  
            defendants actually owed the debts acquired.  The author  
            contends that for many consumers with default judgments  
            entered against them, the first time they become aware of the  
            suit or judgment was upon notice of wage garnishment.  The  
            author indicates the FDBPA made important changes to debt  
            buying practices, but did not affect default judgments entered  
            before January 1, 2014.  Current law makes it difficult to set  
            aside default judgments more than 2 years old, and the author  
            contends some debt buyers wait for 2 years before seeking a  
            garnishment order to avoid potential challenges.


          2)Debt Buying Practices.  In 2010, the Federal Trade Commission  
            (FTC) issued a report indicating collection actions against  
            debtors do not provide sufficient information to defendants or  
            courts about the underlying debts and the buyer's right to  








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            collect.  The report found very few consumers defended or  
            otherwise participated in debt collection litigation, noted  
            concern over the number of default judgments, and recommended  
            reforms to court procedures and debt buying practices to  
            increase the ability of consumers to participate in debt  
            collection litigation.  The FDBPA was enacted in response to  
            the FTC report and reformed the state's complaint and  
            collection process for charged-off consumer debt.


          3)Opposition.  Opponents highlight that the bill allows  
            consumers to claim they did not receive actual notice for  
            several years after the entry of default judgment, and in the  
            case of claims of identity theft or mistaken identity, for an  
            unlimited number of years.  With no time limitations,  
            opponents argue collectors will be required to maintain case  
            and service documents in perpetuity.  Opponents also argue the  
            retroactive application of the bill risks unsettling cases  
            where documentation has already been destroyed, and will  
            result in additional caseload to the state's courts.  Lastly,  
            opponents assert this bill seeks to solve a problem with  
            respect to service of process, not default judgments in debt  
            collection cases, and therefore should apply to all judicial  
            proceedings.








          Analysis Prepared by:Joel Tashjian / APPR. / (916)  
          319-2081













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