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The Defense of Class Action Cases: California Issues

California’s Fair Debt Collection Practices Act: A Brief Overview

In 1978, Congress added Title VIII to the Consumer Credit Protection Act entitled the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Several states, such as California, have enacted consumer protection laws based upon the FDCPA. California’s version of the federal FDCPA is the Rosenthal Fair Debt Collection Practices Act. California Civil Code § 1788 et seq.

California Civil Code section 1812.700 provides:

(a) In addition to the requirements imposed by Article 2 . . ., third-party debt collectors subject to the federal Fair Debt Collection Practices Act . . . shall provide a notice to debtors that shall include the following description of debtor rights:

“The state Rosenthal Fair Debt Collection Practices Act and the federal Fair Debt Collection Practices Act require that, except under unusual circumstances, collectors may not contact you before 8 a.m. or after 9 p.m. They may not harass you by using threats of violence or arrest or by using obscene language. Collectors may not use false or misleading statements or call you at work if they know or have reason to know that you may not receive personal calls at work. For the most part, collectors may not tell another person, other than your attorney or spouse, about your debt. Collectors may contact another person to confirm your location or enforce a judgment. For more information about debt collection activities, you may contact the Federal Trade Commission at 1-877-FTC-HELP or www.ftc.gov.”

(b) The notice shall be included with the first written notice initially addressed to a California address of a debtor in connection with collecting the debt by the third-party debt collector.

(c) If a language other than English is principally used by the third-party debt collector in the initial oral contact with the debtor, a notice shall be provided to the debtor in that language within five working days.

As noted in a prior article, the FDCPA generally applies to third party debt collectors – not to the debt collection efforts of the original creditor. Alibrandi v. Financial Outsourcing Services, Inc., 333 F.3d 82, 85 (2d Cir. 2003) (“Although creditors generally are not subject to the FDCPA, [citation], the Act subjects third-party debt collectors to limitations on the content and nature of their correspondence with debtors, [citations].”). In California, however, the term “debt collector” is statutorily defined to include “any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.” California Civil Code, § 1788.2(c) (italics added). The statute also provides, “The term includes any person who composes and sells, or offers to compose and sell, forms, letters, and other collection media used or intended to be used for debt collection, but does not include an attorney or counselor at law.” California Civil Code, § 1788.2(c).