BILL ANALYSIS                                                                                                                                                                                                    Ó




           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        SB 641|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                UNFINISHED BUSINESS 


          Bill No:  SB 641
          Author:   Wieckowski (D)
          Amended:  8/27/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  5-2, 4/21/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           SENATE FLOOR:  29-10, 5/22/15
           AYES:  Allen, Beall, Block, Cannella, De León, Galgiani, Hall,  
            Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson,  
            Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,  
            Pan, Pavley, Roth, Stone, Vidak, Wieckowski, Wolk
           NOES:  Anderson, Bates, Berryhill, Fuller, Gaines, Moorlach,  
            Morrell, Nguyen, Nielsen, Runner

           ASSEMBLY FLOOR:  45-26, 9/9/15 - See last page for vote

           SUBJECT:   Debt buying: default judgment


          SOURCE:    Public Good

          DIGEST:   This bill adds a provision to the Fair Debt Buying  
          Practices Act (FDBPA) to provide consumers, in limited  
          circumstances involving actions brought by debt buyers, extended  
          time to file a motion to set aside a default or default judgment  
          and for leave to defend an action relating to debt, if the  
          service of summons did not result in actual notice to the  
          consumer in time to defend the action. This bill requires,  
          except in cases of identity theft or mistaken identity, that the  
          consumer serve and file the notice of motion within a reasonable  








                                                                     SB 641  
                                                                    Page  2



          time, but in no event exceeding the earlier of either: (1) six  
          years after entry of the default or default judgment; or (2) 180  
          days of the first actual notice of the action, as specified.

          Assembly Amendments (1) require that service and filing of the  
          motion be made within a reasonable amount of time; (2) limit the  
          scope of the bill to defaults or default judgments entered on or  
          after January 1, 2010; (3) allow for the introduction and  
          consideration of evidence in support of or against the motion;  
          and 4) make other clarifying changes. 

          ANALYSIS: 
          
          Existing law:

           1) Provides that the FDBPA regulates the activities of a person  
             or entity (debt buyer) that has bought charged-off consumer  
             loans for collection purposes.  

           2) Provides that a debt buyer shall not bring suit or initiate  
             an arbitration or other legal proceeding to collect a  
             consumer debt if the applicable statute of limitations on the  
             debt buyer's claim has expired.  

           3) Requires that in an action brought by a debt buyer on  
             consumer debt, specified facts must be alleged in the  
             complaint.

           4) Provides that in an action initiated by a debt buyer, no  
             default or other judgment may be entered against a debtor  
             unless business records, authenticated through a sworn  
             declaration, are submitted by the debt buyer to the court to  
             establish the specific facts required to be alleged, above.    


           5) Provides that no default or other judgment may be entered  
             against a debtor unless a copy of the contract or other  
             document described, as specified, authenticated through a  
             sworn declaration, has been submitted by the debt buyer to  
             the court.  

           6) Provides that in any action on a consumer debt, if a debt  








                                                                     SB 641  
                                                                    Page  3



             buyer plaintiff seeks a default judgment and has not complied  
             with the FDBPA, the court shall not enter a default judgment  
             for the plaintiff and may dismiss the action.  

           7) Provides that, except as provided in the FDBPA, the above  
             default judgment provisions are not intended to modify or  
             otherwise amend existing procedures established under Section  
             585 of the Code of Civil Procedure (which provides a  
             procedure for judgment to be had if a defendant fails to  
             answer or otherwise respond to a complaint). 

           8) Provides, under the Code of Civil Procedure, that when  
             service of a summons has not resulted in actual notice to a  
             party in time to defend the action and a default or default  
             judgment has been entered against him or her in the action,  
             he or she may serve and file a notice of motion to set aside  
             the default or default judgment and for leave to defend the  
             action within a reasonable time,  but in no event exceeding  
             the earlier of: (a) two years after entry of a default  
             judgment against him or her; or (b) 180 days after service on  
             him or her of a written notice that the default or default  
             judgment has been entered.   

           9) Requires that a notice of motion to set aside a default or  
             default judgment and for leave to defend the action, above,  
             designate as the time for making the motion a date prescribed  
             under a specified provision (which sets forth the statutory  
             timelines for filing and serving specified noticed motions,  
             opposing papers, and reply papers), and that the notice be  
             accompanied by an affidavit showing under oath that the  
             party's lack of actual notice in time to defend the action  
             was not caused by his or her avoidance of service or  
             inexcusable neglect.  The party must serve and file with the  
             notice a copy.

           10)Provides that upon a finding by the court that the motion  
             was made within the time period permitted, above, and that  
             his or her lack of actual notice in time to defend the action  
             was not caused by his or her avoidance of service or  
             inexcusable neglect, the court may set aside the default or  
             default judgment on whatever terms as may be just and allow  
             the party to defend the action.  








                                                                     SB 641  
                                                                    Page  4




          This bill:

           1) Creates a limited exception to the current timelines to  
             bring a motion to set aside a default or default judgment and  
             for leave to defend the action under the FDBPA.  Provides  
             that if service of a summons has not resulted in actual  
             notice to a person in time to defend an action brought by a  
             debt buyer and a default or default judgment has been entered  
             against the person in the action, the person may serve and  
             file a notice of motion and motion to set aside the default  
             or default judgment and for leave to defend the action.  

           2) Requires, generally, that the notice of motion be served and  
             filed within a reasonable time, but in no event exceeding the  
             earlier of:

                   Six years after entry of the default or default  
                judgment against the person.
                   One hundred eighty days of the first actual notice of  
                the action.

           1) Requires, notwithstanding the above, that in the case of  
             identity theft or mistaken identity, the notice of motion be  
             served and filed within a reasonable time, but in no event  
             exceeding 180 days of the first actual notice of the action.  
             In the case of identity theft, the person alleging that he or  
             she is a victim of identity theft must provide the court  
             specified documentation.  In the case of mistaken identity,  
             the moving party must provide relevant information or  
             documentation to support the claim that he or she is not the  
             party named in the judgment or is not the person who incurred  
             or owes the debt.

           2) Provides that a notice of this motion shall designate as the  
             time for making the motion a date prescribed under existing  
             law, and shall be accompanied by an affidavit stating under  
             oath that the party's lack of actual notice in time to defend  
             the action was not caused by his or her avoidance of service  
             or inexcusable neglect. The party must serve and file with  
             the notice a copy of the answer, motion, or other pleading  
             proposed to be filed in the action. Permits either party to  








                                                                     SB 641  
                                                                    Page  5



             introduce, and permits the court to consider, evidence in  
             support of its motion or opposition, including evidence  
             relating to the process server who appears on the proof of  
             service of the summons and complaint.

           3) Provides upon a finding by the court that the motion was  
             made within the periods permitted by the bill, above, and  
             that a person's lack of actual notice in time to defend the  
             action was not caused by his or her avoidance of service or  
             inexcusable neglect, the court may set aside the default or  
             default judgment on whatever terms as may be just and allow  
             the party to defend the action.  If the validity of the  
             judgment is not challenged, the court may select an  
             appropriate remedy other than setting aside the default or  
             default judgment.

           4) Provides that the above provisions apply to a default or  
             default judgment entered on or after January 1, 2010, except  
             in the case of identity theft or mistaken identity, in which  
             case these provisions shall apply regardless of the date of  
             the default or default judgment.

           5) Provides that the above provisions shall not limit the  
             equitable authority of the court or other available remedies  
             under law.

          Background
          
          Debt buyers are companies that purchase delinquent or  
          charged-off debts from a creditor for a fraction of the face  
          value of the debt.  Those companies have become subject to  
          increased scrutiny due to numerous complaints on behalf of  
          consumers.  In July 2010, the Federal Trade Commission (FTC)  
          issued a report, Repairing a Broken System, examining debt  
          collection litigation and arbitration proceedings that concluded  
          the "system for resolving consumer debt collection disputes is  
          broken" and recommended significant reforms.  

          In 2012, the federal Consumer Financial Protection Bureau (CFPB)  
          published a rule allowing for federal supervision of the larger  
          consumer debt collectors.  (CFPB, Consumer Financial Protection  
          Bureau to Oversee Debt Collectors (Oct. 24, 2012).)  The CFPB  








                                                                     SB 641  
                                                                    Page  6



          noted that, "[a]pproximately 30 million Americans have, on  
          average, $1,500 of debt subject to collection.  Debt collectors  
          often report consumers' collection status to the credit bureaus.  
           If they get the information wrong, this can be the difference  
          between getting approved or denied for such financial products  
          as a mortgage or a car loan." 

          As a matter of state law, in response to these and other issues  
          concerning debt buying practices, the Legislature enacted SB 233  
          (Leno, Chapter 64, Statutes of 2013), the FDBPA, to further  
          regulate the activities of persons and entities that purchase  
          "charged-off consumer debt."  At the time SB 233 was being  
          considered, the bill's sponsor, the Attorney General, recognized  
          that such concerns are compounded by the fact that a very high  
          percentage of debt collection litigation result in default  
          judgments, where consumers do not appear to present whatever  
          defenses may be available to them.  Accordingly, that bill  
          included provisions that prohibit a default or other judgment  
          from being entered against a debtor, unless business records,  
          authenticated through a sworn declaration, are submitted by the  
          debt buyer to the court to establish the information that is  
          alleged in the complaint, and unless a copy of the contract or  
          other document evidencing the debtor's agreement to the debt,  
          authenticated through a sworn declaration, has been submitted to  
          the court.  

          Under existing law, an individual may set aside a default  
          judgment (which is a judgment entered against a defendant who  
          has failed to plead or otherwise defend against the plaintiff's  
          claim) if they did not receive notice in time to defend the  
          action.  A motion to set aside the default judgment must be  
          filed within the earlier of two years after the entry of a  
          default judgment, or, 180 days after written notice that a  
          default judgment has been entered.  This bill, sponsored by  
          Public Good, creates a separate default judgment rule to extend  
          the time that a consumer would have to bring a motion to set  
          aside a default judgment entered against them in an action  
          brought by a debt buyer.  

          Comments
          
          As stated by the author: 








                                                                     SB 641  
                                                                    Page  7




            There are far more default judgments in collection cases  
            brought by debt buyers against consumers than there are in any  
            other type of case.  Yet despite increased education and media  
            attention around this issue, the number of default judgments  
            in collection cases remains very high in California.  For  
            example, in Sacramento County Superior Court, collections  
            cases resulted in default judgments in 74 [percent] of cases  
            filed in 2013 and 79.3 [percent] for cases filed in the first  
            [five] months of 2014. [ . . . ]

            Prior to the passage of California's Fair Debt Buying  
            Practices Act (FDBPA) in 2013, debt buyers were not required  
            to provide the Court with any evidence that the Defendant  
            being sued actually owed the debt.  [ . . . ]  For many  
            consumers with default judgments entered against them, the  
            first time they are made aware they have been sued on a debt  
            is when they are served post-judgment with a notice of wage  
            garnishment.

            Although the FDBPA has made great strides in reforming debt  
            collection litigation, it has no effect on default judgments  
            entered before January 1, 2014. It's these default  
            judgments-ones obtained before the FDBPA was signed into  
            law-that SB 641 will affect.   [ . . . ]  Moreover, it now  
            appears that at least certain debt buyers are purposely  
            waiting for the two-year mark to pass after having obtained a  
            default judgment and only then seeking a garnishment order,  
            leaving consumers no recourse to challenge the validity of the  
            debt.

            SB 641 will allow a consumer, in limited circumstances, to  
            file a motion to set aside a default judgment that is more  
            than two years old so the consumer may challenge the validity  
            of the debt in court and try the case on the merits.  The  
            effect of SB 641 is limited to cases brought by [ . . . ] debt  
            buyers.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes










                                                                     SB 641  
                                                                    Page  8



          According to the Assembly Appropriations Committee, minor and  
          absorbable costs to the Judicial Council; potential increase in  
          caseload, though likely modest, to state courts.


          SUPPORT:   (Verified9/9/15)


          Public Good (source)
          Attorney General Kamala Harris
          State Treasurer John Chiang
          Bay Area Legal Aid
          California Labor Federation
          California Professional Firefighters
          California Reinvestment Coalition
          Center for Responsible Lending
          Consumers for Auto Reliability and Safety
          Consumers Union
          East Bay Community Law Center 
          Katharine & George Alexander Community Law Center
          Los Angeles Democratic Party Chairman Eric Bauman 
          National Consumer Law Center
          National Employment Law Project
          Public Counsel
          Western Center on Law & Poverty


          OPPOSITION:   (Verified9/9/15)


          California Association of Collectors
          California Bankers Association
          California Creditors Bar Association
          DBA International

          ARGUMENTS IN SUPPORT:   Bay Area Legal Aid, in support, notes  
          that they frequently see default judgments granted in cases  
          "wherein the underlying accounts were fraudulent, the result of  
          identity theft, or otherwise incorrect and the defendant was  
          'served' at a location that they did not live or work.   
          Nonetheless these defendants are often precluded from setting  
          aside the judgment by an arbitrarily imposed deadline.  This law  








                                                                     SB 641  
                                                                    Page  9



          would provide individuals with an opportunity to have their  
          issues heard regarding both service of the summons and complaint  
          and the underlying debt collection lawsuit.  For the working  
          poor living paycheck to paycheck a default judgment, with its  
          accompanying wage garnishment and bank account levies, can lead  
          directly to homelessness and other severe consequences."  Bay  
          Area Legal Aid argues that this bill will prevent abuse by debt  
          buyers where the vast majority of debt collection lawsuits  
          result in default judgments; provide relief for low-income wage  
          earners facing collection on unsubstantiated default judgments  
          and give low income litigants the chance to have their cases  
          heard on the merits; and resolve an unsettled area of law where  
          some courts recognize the principle that judgments that are void  
          for lack of service may be set aside after two years under  
          existing law. 

          Public Counsel emphasizes that "[o]nly consumers who lack actual  
          knowledge of debt buyer suits will have recourse under the new  
          law.  They will have to act within a reasonable time after  
          learning about the lawsuit.  In addition, they will have to  
          submit an affidavit sworn under penalty of perjury that their  
          lack of notice did not result from avoidance of service or  
          inexcusable neglect, and then will have to defend the action on  
          the merits.  This new bill is no free ticket out of debt."  


          ARGUMENTS IN OPPOSITION:DBA International (DBA) and the  
          California Association of Collectors (CAC) write in opposition  
          to this bill in part because they believe existing law provides  
          an adequate methodology to vacate judgments when an individual  
          contends they did not receive actual notice in time to defend an  
          action.  Moreover, they assert that, even if the time period  
          under existing law has expired, "any litigant still has the  
          ability to file an independent action in equity seeking to set  
          aside the judgment."  DBA and CAC also oppose on the following  
          grounds:

           This bill allows for discriminatory treatment of default  
            judgments obtained by companies in one industry (namely, debt  
            buying companies) and, furthermore, would "create a highly  
            unusual fact pattern where a default judgment obtained by a  
            bank would be subject to the two year period contained [under  








                                                                     SB 641  
                                                                    Page  10



            existing law] and the mere act of selling the judgment on the  
            secondary market (with no other factual changes) would subject  
            that judgment to significantly lower thresholds to vacate in  
            perpetuity."

           This bill questions the competency of the judiciary, given  
            that a court cannot enter judgment by default in favor of  
            anyone (including debt buying companies) unless the court is  
            satisfied that the defendant has been properly served the  
            defendant has failed to respond, and the plaintiff has put  
            forth sufficient evidence to base the judgment upon. "There  
            simply is no basis for imposing on the industry higher levels  
            of evidentiary requirements for a default judgment [as  
            required under the FDBPA] and then pairing it with the lowest  
            threshold to vacate default judgments via the provisions of SB  
            641." 

           This bill conflicts with document retention and destruction  
            policies and rule of law concerning judgments. "The effect of  
            a judgment is to fold all data, documentation, and evidence  
            concerning the legitimacy of the underlying obligation into  
            the judgment.  Absent a fraud on the court . . . a judgment is  
            a legally binding document that stands in place of all that  
            existed prior to the judgment."  Due to companies' mandatory  
            data and document retention and destruction policies that are  
            based on current law, insofar as this bill allows motions to  
            be filed to vacate five or even 10 year old judgments, this  
            bill "would all but virtually guarantee that some of the  
            evidence which was reviewed by the court no longer exists due  
            to mandated destruction policies." 

           This bill creates the potential to inundate the courts as a  
            result of zealous legal representation that uses every  
            available legal option the law permits, regardless of the  
            legitimacy of service or high quality of the evidence  
            considered by the court at the time of [default] judgment.


           ASSEMBLY FLOOR:  45-26, 9/9/15
           AYES: Bloom, Bonilla, Bonta, Burke, Calderon, Campos, Chau,  
            Chiu, Chu, Cooley, Dababneh, Dodd, Eggman, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon,  








                                                                     SB 641  
                                                                    Page  11



            Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine,  
            Linder, Lopez, Low, McCarty, Medina, Mullin, Nazarian, Quirk,  
            Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Atkins
           NOES: Achadjian, Travis Allen, Baker, Bigelow, Chang, Chávez,  
            Dahle, Beth Gaines, Gallagher, Gray, Grove, Harper, Jones,  
            Kim, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte,  
            Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
           NO VOTE RECORDED: Alejo, Brough, Brown, Cooper, Daly, Frazier,  
            O'Donnell, Perea, Wood




          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          9/9/15 19:28:11


                                   ****  END  ****