BILL NUMBER: SB 896 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Runner
FEBRUARY 22, 2005
An act to add Chapter 9 (commencing with Section 5610) to Part 5
of Division 9 of the Family Code, relating to child support.
LEGISLATIVE COUNSEL'S DIGEST
SB 896, as introduced, Runner. Child support.
Existing law governs the collection of child support by local
child support agencies, or by means of a writ of execution, a notice
of levy, or earnings assignment order.
This bill would enact the Private Child Support Collection Act.
These provisions would regulate the activities of private child
support collectors, as defined. Among other things, the bill would
limit the child support that may be collected and the fees that may
be charged by a private child support collector, require that entity
to provide specified notices and disclosures to the child support
obligee in a written contract and during the term of the contract,
authorize the obligee to cancel any contract entered into with that
entity in certain circumstances, prescribe the rights of the parties
with respect to local child support agencies and other governmental
entities, and prescribe procedures and remedies for enforcement of
the provisions of the act.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 9 (commencing with Section 5610) is added to
Part 5 of Division 9 of the Family Code , to read:
CHAPTER 9. PRIVATE CHILD SUPPORT COLLECTORS
5610. This chapter shall be known and may be cited as the
"Private Child Support Collection Act."
5611. For the purposes of this chapter:(a) "Child support
obligation" means an obligation for the payment of financial support
for a child under an order or writ issued by a court or other
tribunal.
(b) "Obligee" means the person identified in an order for child
support issued by a court or other tribunal as the payee to whom an
obligor's amounts of ordered child support are due.
(c) "Obligor" means the person identified in an order for child
support issued by a court or other tribunal as the individual
required to make payment under the terms of a support order for a
child.
(d) "Private child support collector" means an individual or
nongovernmental entity who engages in the enforcement of child
support ordered by a court or other tribunal for a fee or other
consideration. The term does not include any of the following:
(1) An attorney licensed to practice law in this state.
(2) A government agency of this or another state designated to
serve as a Title IV-D agency in accordance with Part D of Title IV of
the federal Social Security Act (42 U.S.C. Sec. 651 et seq.).
(3) A contractor awarded a contract to engage in child support
enforcement on behalf of a governmental agency of this or another
state that is authorized by law to enforce a child support
obligation.
5612. Any contract for the collection of child support between a
private child support collector and an obligee shall be written in
simple language, in at least 12-point type, signed by the private
child support collector and the obligee and shall include all of the
following: (a) An explanation of the fees and an example of how they
are calculated and deducted.
(b) An explanation of the nature of the services to be provided.
(c) The expected duration of the contract, stated as a length of
time or as an amount to be collected by the collection agency.
(d) An explanation of the opportunities available to the obligee
or private child support collector to terminate the contract or other
conditions under which the contract terminates, including those
specified in Section 5613.
(e) The mailing address, telephone numbers, facsimile numbers, and
Internet address or location of the private child support collector
for the purpose of communications between the collection agency and
the obligee or any authorized agent of the obligee.
(f) Statements substantially similar to the following:
(1) "This contract terminates under certain circumstances. You may
request termination of this contract at any time prior to midnight
of the 15th business day after the date you sign the contract. You
may also request termination of this contract under other
circumstances that are described in Section 5613 of the Family Code.
To request termination of this contract, mail a written, signed, and
dated notice stating why you want to terminate your contract to
__________ (name of the private child support collector) at
__________ (address of the private child support collector)."
(2) "This contract calls for us to collect money owed to you, and
not money owed to the county or state. If some of your child support
is owed to the county or state because you are receiving or have
received program benefits from CalWORKs or Temporary Assistance to
Needy Families, then we cannot collect that money for you. If you
start to receive program benefits from CalWORKs or Temporary
Assistance to Needy Families during this contract, you must tell us."
(3) "____________ (name of private child support collector) is not
a governmental entity and charges a fee for its services."
5613. An obligee may, by written demand, terminate a contract
with a private support collector in any of the following
circumstances: (a) Within 15 days of signing the contract.
(b) After any 12 consecutive months in which the private child
support collector fails to make a collection.
(c) Any time a state or local Title IV-D agency begins collecting
on behalf of the obligee, provided those collections are completely
independent of the private child support collector's involvement in
the case.
(d) If the private child support collector commits a material
breach of any provision of the contract or a material violation of
any provision of this chapter with respect to the obligee.
(e) For any other reason specified in the contract.
5614. A contract with a private child support collector shall
terminate automatically when the contract term has expired or the
contract amount has been collected.
5615. An obligee shall owe no fees after termination of a
contract with a private child support collector, except a private
child support collector may charge and collect its fee on child
support collected after the termination of a contract if the payment
is made to discharge, in whole or in part, a lien filed by the
private child support collector prior to the termination of the
contract.
5616. A private child support collector shall not enter into a
payment agreement with an obligor that forgives or that compromises,
in whole or in part, arrearages owed to the obligee without the
written consent of the obligee.
5617. A private child support collector shall not impose a fee or
charge for any child support payments collected solely through the
efforts of other persons or entities, and any fees retained shall be
promptly refunded to the obligee upon proof that other persons or
entities were solely responsible for the collection.
5618. A private child support collector providing services to an
obligee that has, or has had, a case pursuant to Part D of Title IV
of the federal Social Security Act with a county child support agency
shall provide notice of the contract to the county child support
agency. (a) If the notice includes a power of attorney signed by the
obligee requesting the county child support agency to change the
payment address to that of the private child support collector, the
county shall honor the request for change of address, provided
nothing shall prevent the obligee from revoking the change of address
at any time.
(b) If the notice includes a power of attorney signed by the
obligee authorizing the county child support agency to release
payment records to the private child support collector, the county
child support agency shall release those records, including
information regarding amounts assigned to the county or state.
(c) A private child support collector who incorrectly states the
amount of child support to be collected is not in violation of this
chapter if the private child support collector has not received
payment records from the state or county child support enforcement
agency pursuant to this section.
(d) A private child support collector is not in violation of this
chapter if it collects any amount assigned to the county or state if
the private child support collector has not received payment records
from the state or county child support enforcement agency pursuant to
this section, provided the private child support collector complies
with subdivision (c) of Section 5619.
5619. (a) A private child support collector shall not collect
support assigned to the county or state pursuant to Section 11477 of
the Welfare and Institutions Code, or to any other state. (b) If
funds contracted to be collected by the private child support
collector are subject to an assignment to the county or state, the
contract shall be suspended to the extent of the amount subject to
the assignment or in its entirety if the amount assigned equals or
exceeds the amount to be collected pursuant to the contract.
(c) A private child support collector who receives notice that
child support has been assigned to the county or state shall, upon
receipt of the notice, cease any further collection activities
related to the assigned support and shall pay over to the assignee
any moneys subject to the assignment, including any fees collected on
those moneys that are collected after that notice and that are in
the possession or control of the private child support collector.
5620. A private child support collector representing an obligee
with an open case pursuant to Part D of Title IV of the federal
Social Security Act shall ensure that all payments made on behalf of
the obligor are directed to the county child support registry or
state disbursement unit.
5621. (a) A private child support collector shall maintain
records of all child support collections made on behalf of, and
disbursed to, a client who is an obligee, including: (1) The name of,
and other identifying information relating to, any obligor who made
child support payments collected by the private child support
collector.
(2) The amount of support collected by the private child support
collector for the obligee.
(3) The date on which each amount was collected.
(4) The date on which each amount due the obligee was sent to the
obligee.
(5) The amount of the payment sent to the obligee.
(6) A copy of the order establishing the child support obligation
under which a collection was made by the private child support
collector.
(7) Records of all correspondence between the private child
support collector and an obligee and obligor in a case.
(8) Any other pertinent information relating to the child support
obligation, including any case, cause, or docket number of the court
having jurisdiction over the matter and official government payment
records obtained by the private child support collector on behalf of,
and at the request of, the obligee.
(b) The records required under this section shall be maintained by
the private child support collector for a period of four years from
the date of the last child support payment collected by the private
child support collector on behalf of an obligee.
(c) A private child support collector shall safeguard case records
in a manner reasonably expected to prevent intentional or accidental
disclosure of confidential information pertaining to the obligee or
obligor, including providing necessary protections for records
maintained in an automated system.
(d) A private child support collector shall timely inform clients
of all legal orders, hearings, and notices intended for the client
that have been sent to the private child support collector by a
government child support enforcement agency.
(e) A private child support collector shall provide to an obligee,
via telephone or secure Internet access, or by mail at the obligee's
request, the information maintained pursuant to paragraphs (1) to
(5), inclusive, of subdivision (a).
5622. A private child support collector shall not collect or
attempt to collect child support by means of any of the following
conduct: (a) Using, or threatening to use, physical force or violence
or any criminal means to cause harm to the person, the reputation,
or the property of any person.
(b) Threatening that the failure to pay a child support obligation
will result in an accusation that the obligor has committed a crime
where the accusation, if made, would be false.
(c) Communicating, or threatening to communicate, to any person
the fact that an obligor has engaged in conduct, other than the
failure to pay a child support obligation, which the private child
support collector knows or has reason to believe will defame the
obligor.
(d) Threatening to any person that nonpayment of the child support
obligation may result in the arrest of the obligor or the seizure,
garnishment, attachment, or sale of any property or the garnishment
or attachment of wages of the obligor, unless that action is in fact
permitted by the law.
(e) Threatening to take any action against the obligor which the
private child support collector has no authority to take.
(f) Using obscene or profane language.
(g) Placing telephone calls without disclosing the identity of the
private child support collector.
(h) Causing expense to any person for long distance telephone
calls, telegram fees, or charges for other similar communications, by
misrepresenting to that person the purpose of a telephone call,
telegram, or similar communication.
(i) Causing a telephone to ring repeatedly or continuously to
annoy the person called.
(j) Communicating, by telephone or in person, with the obligor
with a frequency that is unreasonable and constitutes harassment to
the obligor under the circumstances.
(k) Communicating with the obligor's employer regarding the
obligor's child support obligation unless such a communication is
necessary to the collection of the obligation, or unless the obligor
or his attorney has consented in writing to such communication. A
communication is necessary to the collection of the obligation only
if it is made for the purposes of verifying the obligor's employment,
locating the obligor, or effecting garnishment of the obligor's
wages.
(l) Falsely representing that any person is an attorney or
counselor at law.
(m) Falsely representing that any private child support 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.
(n) Falsely representing that a private child support collector is
a consumer reporting agency or falsely representing that information
concerning an obligor's failure or alleged failure to pay a child
support obligation has been, or is about to be, referred to a
consumer reporting agency.
(o) Initiating communications, other than statements of account,
with the obligor with regard to the obligation, when the private
child support collector has been previously notified in writing by
the obligor's attorney that the obligor is represented by that
attorney with respect to the obligation and the notice includes the
attorney's name and address and a request by the attorney that all
communications regarding the child support obligation be addressed to
that attorney, unless the attorney fails to answer correspondence,
return telephone calls, or discuss the obligation in question. This
subdivision does not apply if prior approval has been obtained from
the obligor's attorney, or if the communication is a response in the
ordinary course of business to an obligor's inquiry.
5623. (a) In addition to any other remedy provided by this
chapter, a person may bring an action for any of the following: (1)
Injunctive relief to enjoin or restrain a violation of this chapter.
(2) Actual damages incurred as a result of a violation of this
chapter.
(b) A person who prevails in an action brought pursuant to this
section is entitled to recover court costs and reasonable attorney's
fees.
(c) On a finding by a court that an action pursuant to this
section was brought in bad faith or for purposes of harassment, the
court shall award the defendant attorney's fees reasonably related to
the work performed and costs.
5624. (a) A violation of this chapter is a deceptive trade
practice under the laws of this state and is actionable under those
laws. (b) This chapter does not affect or alter a remedy at law or in
equity otherwise available to an obligor, obligee, governmental
entity, or other legal entity.
(c) A private child support collector does not violate this
chapter if the action complained of resulted from a bona fide error
that occurred notwithstanding the use of reasonable procedures to
avoid the error.