Preview
FILED
Brian N. Winn (State Bar No. 86779) SAN MATEO COUNTY
Laura M. Hoalst (State Bar No. 101082) NOY 1 9 2018
John E. Gordon (State Bar No. 180053)
Jason M. Burrows (State Bar No. 309882) af
Amit Taneja (State Bar No, 304559) ZVIA a
Grace Gail Cara (State Bar No. 315558) PAY CLER
Adonia Tan (State Bar No. 317432)
Winn Law Group, A Professional Corporation iu CLJ—~04159
110 E Wilshire Ave Ste 212, Fullerton CA 92832 | Rg for Judicial Notice
‘Telephone: (714) 446-6686, Fax No. (714) 446-6
File No: 18-07297-0-CDG-DGR- (19104 00)
Attorneys for Plaintiff CAD
SUPERIOR COURT OF CALIFORNIA
10
i SAN MATEO COUNTY, REDWOOD CITY DISTRICT
12
CAVALRY SPV I, LLC, as assignee of Case No. 18CLJ04159
13 SYNCHRONY BANK FKA GE CAPITAL
14 RETAIL BANK, Limited Civil Case
15 Plaintiff, PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE AND
16
VS. SUPPLEMENTAL REFERENCE
17 MEMORANDUM OF COMPARISON
JAYSON AROCHA, et al. EXHIBITS FOR LEGISLATIVE
18 HISTORY OF SB 233 and SB 890
Defendant(s)
19
Complaint Filed: 8/13/18
20
21 Plaintiff hereby requests the Court take judicial notice of the attached documents as
22
legislative history discussing Senate Bill 233, and Senate Bill 890 (its predecessor), to show
23
the purpose of the statute enaction and the deletion of specific language in
24
25 CivilC: le section 1788.60:
26 (B) For the purpose of this section, the only evidence sufficient to establish the amount
27 and nature of the debt shal] be properly authenticated business records that satisfy the
28
Page 1
PLAINTIFF'S MEMORANDUM OF CASE IN SUPPORT OF REQUEST FOR JUDGMENT
“Ye es
%, ty.”7. % G We
%, pO
1 requirements of Sections 1271 and 1272 of the Evidence Code. The authenticated records
shall include the following items:”
Exhibit A: SB - 233 Debt buying with Bill’s History. (Pages 1-7, and page 8) - page 3
Exhibit B: SB - 233 Comparison to Version 04/01/13 (pages 1-7) - page 11.
Exhibit C: SB - 890 Comparison to Version 05/17/11 (pages 1-7) - page 19.
Exhibit D: SB - 890 Compared to Version 02/08/11 (page 1-6) - page 28.
Also attached are documents for analyses and history of the enactment of the statute
Exhibit E: Bill Analysis (table) - page 35.
10
11 Exhibit F: Senate Banking and Financial Institutions dated 04/15/13 (pages 1-8) - page 37.
12 Exhibit G: Senate Floor Analyses dated 05/17/13 (pages 1-8) - page 46.
13 Exhibit H: Senate Judiciary Committee dated 05/06/13 (pages 1-12) - page 55.
14
Plaintiff highlights page 23 herein for deletion of the hearsay requirement referenced.
1S
Thereby declare, under penalty of perjury under the laws of the state of California, that
16
17 the attached documents “Compare Versions” with dates designated, and analysis, are true
18 copies of documents pulled from the website identified as “California Legislative Information”,
19 its address is set forth on the bottom of the page.
20
Dated: October 30, 2018
21 BY FAX
WINN LAW GROUP, APC
22
<=
23
{] Brian N. Winn
24 { ] Laura M. Hoalst
[] John E. Gordon
25
{ ] Jason M. Burrows
26 Amit Taneja
[ ] Grace Gail Cara
27 [] Adonia Tan
Attorney for Plaintiff
28
Page 2
PLAINTIFF'S MEMORANDUM OF CASE IN SUPPORT OF REQUEST FOR JUDGMENT
10
i
12
18
14
15
16
17
18
19
20
21
22
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24
26
26 ExhibitA
27 SB - 233 Debt buying with Bill's History. (Pages 1-7, and page 8).
28
P. 3
Plaintiff's Memorandum in Support of Judgment
suuay 8 Law AS Amended Page 1 of 6
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LEGISLATIVE INFORMATION
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‘$B-233 Debt buying, (2013-2024)
ae anne
SECTION 1. The Legislature finds and declares the following:
(2) The collection of debt purchased by debt buyers has become a significant focus of public concern due to the
avequacy of documentation required to be maintained by the industry in support of its collection activities and
Atigation.
(b) State law does not currently prescribe the specific nature of documentation that 2 debt buyer must malntein
and produce in a fegal action on the debt.
(¢) Oacumentation used to support the collection of a debt must be sufficient to prove that the individual who is
being asked to pay the debt Is In fact the Individual associated with the original contract or agreement, and that
the amount of indebtedness Is accurate.
(d) It Is important to create documentation and process standards for the collection of consumer debt that all
interested parties can easily understand,
{e) This act is not intended to affect the legal enforceability, or collectabllity, of a charged-off consumer debt,
is Intended to impose enforceable standards upon the collection and litigation of consumer debt that has been
purchased by a debt buyer following the consumer debt's charge offby a creditor.
(f) Setting specific documentation and process standards will protect consumers, provide needed clarity to courts,
and establish clearer criterta for debt buyers and the collection industry.
9) This act shall be known, and may be cited, as the Fair Debt Buying Practices Act,
SEC. 2. Tite 1.6C,5 (commencing with Section 1788.50) is added to Part 4 of Division 3 of the Civil Cade, to
read:
TITLE 1.6C.5, Fair Debt Buying Practices
1768.50, (2) As used in this title;
(1) "Bebt buyer” means 8 person or entity that is regularly engaged in the business of purchasing charged-off
consumer debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires
an attorney-at-faw for collection litigation. “Debt buyer” does not mean @ person or entity that acquires a charged
-off consumer debt incidental to the purchase of a portfolla predominantty consisting of consumer debt that has
not been changed off,
(2) "Chargea-off consumer debt“ means a consumer debt thet has been removed trom a creditor's books as an
asset and treated as a loss or expense.
(6) The acquisition by 8 check Services company of the right to collect on a paper or electronic check Instrument,
including an Automated Clearing House (tem, that has been returned unpald to a merchant does not constitute @
purchase of delinquent consumer debt under this title,
(¢) Terms defined in Title 1.6C (commencing with Sectlon 1788) shall apply to this title.
(a) This title shall apply to debt buyers with respect to all consumer debt sold or resold on or after January J,
2014.
1788.62, (a) A debt buyer shall not make any written statement to 2 debtor in an attempt to collect a consumer
debt unless the debt buyer possesses the following information:
(J) That the debt buyer Is the sole awner of the debt at issue or has authority to assert the rights of all owners of
the debt.
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(2) The debt dalance at charge off and en explanation of the amount, nature, and reason for all post-charge-off
Interest and fees, if any, impased by the charge-off creditor or any subsequent purchasers of the debt. This
paregraph shalt not be deemed to require 2 specific Kemization, but the explanation shall identify separetely the
charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees,
(3) The date of default or the date of the last payment.
(4) The name and an address of the charge-off creditor at the time of cherge off, and the charge-off creditor's
account number associated with the debt. The charge-off creditor's name and address shal! be in sufficient form
50 as to reasonably identify the charge-off creditor.
(5) The name and last known eddress of the debtoras they appearedin the charge-off creditor’s records prior to
the sale of the debt. If the debt was sold prior to January 1, 2014, the name and last known address of the
debtor as they appeared in the debt owner's records on December 31, 2013, shall be sufficient.
{6) The names end addresses of ail persons or entitles that purchased the debt after charge off, including the
debt buyer making the written statement. The nemes and addresses shall be in sufficient form so as to
reasonably identify each such purchaser.
(b) A debt buyer shall not make any written statement to a debtor in an attempt ta collect a cansumer debt
unless the debt buyer has access to a copy of & contract ar other document evidencing the debtor's agreement to
the debt. If the claim is besed on debt for which na signed contract or agreement exists, the debt buyer shalt
have access toa copy of 8 document provided to the debtor while the account was active, demonstrating that the
debt was incurred by the debtor. For » revolving credit account, the most recent monthly statement recording
purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement,
(c) A debt buyer shall provide the information or documents identified in subdivisions (a) end (b) to the debtor
without charge within 15 calendar days of receipt of a debtor's written requast for Information regarding the debt
or proofof the debt. Jf the debt buyer cannot provide the information or documents within 15 calendar days, the
debt buyer shall cease all collection of the debt until the debt buyer provides the debtor the information or
documents desctibed in subdivisions (a) and (b). Except as provided otherwise in this title, the request by the
debtor shall be cansistent with the validation requirements contained in Section 16929 of Title 15 of the United
States Code. A debt buyer shail provide afl debtors with whom It has contact an active postal address to which
these requests can be sent. A debt buyer may alsa provide an active email address to which these requests can
be sent and through which information and documents can be delivered, if the parties agree,
(a) (1) A debt buyer shall include with its first written communication with the debtor in no smaller than 12-point
type, & separate prominent notice that provides:
“You may request records showing the following: (1) that [Insert name of debt buyer) has the right to seek
collection of the debt; (2) the debt balence, including 8n explanation of any interest charges and additional fees;
(3) the date of default or the data of the last payment; (4) the name of the charge-off creditor and the account
number associated with the debt; (5) the name and last known address of the debtoras It appeared in the charge
voft creditor's or debt buyer's records prior to the sale of the debt, es appropriate; and (6) the names of all
persons or entities that have purchased the debt. You may also request from us e@ copy of the contract or other
document evidencing your agreement to the debt.
“A request for these records may be addressed to: {insert debt buyer's active mailing address and email address,
if applicable)"
(2) When collecting on 2 time-barred debt where the debt is not past the date for obsolescence provided for in
Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681¢):
“The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it. If
you do not pay the debt, [insert name of debt buyer] may (continue to] report it to the credit reporting agencies
as unpald for as long as the law permits this reporting.*
(3) When collecting on @ time-barred debt where the debt is past the date for obsolescence provitted for in
Section 608(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681¢):
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“The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for It,
and we will not report it to any credit reporting agency.”
(e) If b language other than English Is principally used by the debt Luyer in the initial oral contact with the
debtor, the notice required by subdivision (d) shall be provided to the debtor in thet language within five working
days,
(D An the event of 2 conflict between the requirements of subdivision (d) and federal law, so that it is
impracticable to comply with both, the requirements of federal law shall prevalt.
1788.56. (2) All settlement agreements between a debt buyer and a debtcr shell be documented in open court or
otherwise reduced to writing, The debt buyer shall ensure that @ copy of the written agreement is provided to the
debtor.
(b)A debt buyer that recelves payment on a debt sheil provide, within 20 celendar days, 2 receipt or monthly
statement, to the debtor. The receipt or statement shall clearly and conspicuously show the amount and date
paid, the name of the entity paid, the current account number, the name of the charge-off creditor, the account
number issued by the charge-off creditor, and the remaining balance owing, if any. The receipt or statement may
be provided efectroniceily if the parties agree.
(c) A debt buyer that accepts a payment as payment in full, or as @ full and final compromise of the debt, shell
provide, within 30 calendar days, a final statement that complies with subdivision (b). A debt buyer shalt not sett
an interest in @ resolved debt, or any personal or financial information related to the resolved debt.
1788.56. A debt buyer shall not bring suit or initiate en arbitration or other tegal proceeding to collect 4 consumer
debt if the applicable statute of limitations on the debt buyer's claim has expired.
1788.58, In an action brought by a debt buyer on a consumer debt:
(a) The complaint shail allege all of the following:
(1) That the pleintiftis a debt buyer.
{2) The npture of the underlying debt and the consumer transaction or transactions from which it is derived, in 2
short and plain statement.
(3) That the debt buyer is the sole owner of the debt at issue, or has authority to assert the rights of all owners of
the debt.
(4) The debt balance at charge off and an explanation of the amount, nature, and reason for all post-charge-off
interest and fees, if any, Imposed by the cherge-off creditor or any subsequent purchasers of the debt. This
paragraph shall not be deemed to require @ specific itemization, but the explanation shall identify separately the
charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-of fees.
(5) The date of default or the date of the last payment.
(6) The name and an address of the cherge-off creditor at the time of charge off, end the charge-off creditor’s
account number associated with the debt. The charge-off creditor's name and address shalt be in sufficient form
$0 as to reasonably identify the charge-off creditor.
(7) The name and last known address of the debtor as they appeared in the charge-off creditor's records prior to
the sale of the debt. /f the debt was sold prior to January I, 2014, the debtor's name and last known address as
they appeared in the debt awner’s records on December 31, 2013, shal) be suffictent.
(8) The names and addresses of ali persons or entities that purchased the debt after charge off, including the
plaintiff debt buyer. The names and addresses shall be in sufficient form so as to reasonably identify each such
purchaser.
9) That the debt buyer has complied with Section 1788.52.
(0) A copy of the contract or other document described in subdivision (b) of Section 1788.52, shallbe attached to
the complaint. :
(¢) The requirements of this tide shall aot be deemed to require the disclosure in public records of personal,
financial, or medical information, the canfidentiality of which is protected by any state or federal law.
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1788.60. (3) In an action initiated by 2 debt buyer, no defauft or other judgment may be entered against a debtor
unless business records, authenticated through @ sworn decleration, are submitted by the debt buyer to the court
to establish the facts required to be alleged by paragraphs (3) to (&), inclusive, of subdivision (a) of Section
1788.58.
(8) No default or other judgment may be entered against a debtor unless 2 copy of the contract or other
document described in subdivision (b) of Section 1788.52, authenticated thraugh a sworn declaration, has been
submitted by the debt buyer to the court.
(¢) In any action on @ consumer deht, if a debt buyer plaintiff seeks a default Judgment and has not complied with
the requirements of this tide, the court shaft not enter a default judgment for the plaintiff and may, fn its
discretion, dismiss the action,
(0) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures
established in Section S85 of the Code of Civil Procedure,
1788.62. (a) In the case of an action brought by an individual or individuals, a debt buyer thet violates any
Provision of this title with respect to any person shall be fiable to that person in an amount equal to the sum of
the following:
{1) Any actual demages sustained by that person as a result of the violation, Including, but not limited to, the
amount of any judgment obtained by the debt buyer as a reswit of a time-barred sult to collect a debt from that
person.
(2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars
($100) nor greater than one thousand dollars ($1,000),
(b) In the case of a class action, a debt buyer that violetes any provision of this title shall be liable tor any
statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a), If the court finds that
the debt buyer engaged in a pattern andpractice of violating any provision of this title, the court may awerd
additional damages ta the class in an amount not to exceed the lesser of five hundred thousand dollars
$500,000) or 1 percent of the net worth of the debt buyer.
(c) G1) In the case of any successful action to enforce Hebility under this section, the court shal! award costs of
the action, together with reasonable attorney's fees as determined by the court.
(2) Reasonable attomey's fees may be awarded to a prevailing debt buyer upon a finding by the court that the
plaintiff's prosecutian of the action was not in good faith,
(0) In determining the amount of lability under subdivision (b), the court shall consider, among other relevant
factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the
resources of the debt buyer, and the number of persons adversely affected.
(e} A debt buyer shall have no civil lability under this section if the debt buyer shows by 3 preponderance of
evidence that the violation was not Intentional and resulted from a bons fide error, end occurred notwithstanding
the maintenance of procedures reasonably adopted to avofd any error.
(0) An action to enforce any hability created by this title shall be draught within one yeor from the date of the last
violation.
(g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act {Title 1.6C (commencing
with Sectian 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude
recovery for the same acts in an action brought under this Utle.
1788.64, Any waiver of the provisions of this title is contrary to public policy, and is void end unenforceable.
SEC. 3, Section 581.5 is added to the Code of Civil Procedure, to read:
581.5, in a case involving consumer debt, as defined in Section 1788.2 of the Civil Cove, and as regulated under
Title 1.6C.S (commencing with Section 1788.50) of Part 4 of Division 3 of the Civil Code, If the defendant debtor
appears for trial on the scheduled trial date, and the plaintiff debt buyer either feils to appear or is not prepared
to proceed fo trial, and the court does not find a good cause for continuance, the court may, in Its discretion,
dismiss the action with or without prejudice, Notwithstanding any other isw, in this Instance, the court may award
the defendant debdtor’s costs of preparing for trial, Including, but not limited to, fost wages and transportation
expenses,
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SEC. 4, Section 700.010 of the Code of Civil Pracedure is amended to read;
700.040, (2) At the time of levy pursuant to this article or promptly thereafter, the levying officer shall serve a
copy of the following on the judgment debtor:
(1) The writ of execution.
(2) A notice of levy.
(3) If the judgment debtor is a natural person, @ copy of the form lsting exemptions prepared by the Judicial
Council pursuant to subdivision (c) of Section 682.030, the list of exemption emounts published pursuant to
subdivision (¢) of Section 703.150, a copy of the form that the judgment debtor may use to make a claim of
exemption pursuant to Section 703.520, and a copy of the form the judgment debtor may use to provide 3
financial statement pursuant to Section 703.530.
(4) Any affidavit of Identity, as defined In Section 680,135, for names of the debtor listed on the writ of
execution.
(b) Service under this section shall be made personally or by malt.
SEC. 5. Section 706.303 of the Code of Civil Procedure is amended to read;
706,103. (a) The levying officer shall serve upon the designated employer aif of the (cloning:
(1) The original and one copy of the earnings withhoiding order.
(2) The form for the employer's return,
(3) The notice to employee of earnings withholding order,
(4) A copy of the form that the judgment debtor may use to make & claim of ‘exemption,
(5) 4 copy of the form the judgment debtor may use to provide a financial statement.
(b) At the time the levying officer mokes service pursuant to subdivision (a}, the levying officer shall provide the
employer with @ copy of the employer's Instructions referred to in Section 706.227. The Judicial Councit may
adopt rules prescribing the circumstances when compliance with this subdivision Is not required,
{e) Na earnings withholding order shell be setved upon the employer after the time specified In subdivision (b) of
Section 699.530.
SEC. 6. Section 706.104 of the Code of Civil Procedure is amended to read:
796.104, Any employer who is served with an earnings withholding order shalt:
(2) Deliver to the judgment debtor a copy of the earnings withholding order, the notice to employee of earnings
withholding, a copy of the form that the judgment debtor may use to make & claim of exemption, and a copy of
the form the judgment debtor may use to provide a financial statement within 10 days from the date of service. If
the judgment debtor Is no flanger employed by the employer and the employer does not owe the employee any
earnings, the employer is not required to make such delivery. The employer ls not subject to any civil lability for
failure to comply with this subdivision, Nothing In this subdivision limits the powerof 8 caurt to hold the employer
in contempt of court for failure to comply with this subdivision,
(b) Complete the employer's return on the form provided by the levying officer and mail it by first-class mat!,
postage prepaid, to the levying officer within 15 days from the date of service. If the earnings withholding order (s
ineffective, the employer shall state in the employer's return that the order will not be complied with for this
reason and shall return the order to the tevying officer with the employer's retum.
SEC, 7. jection 706.108 of the Code of Civil Procedure is amended to read:
706.108. (a) If a writ of execution tras been Issued to the county where the judgment debtor's employer Is to be
served and the time specified in subdivision (b) of Section 699,530 for levy on pruperty under the writ has not
expired, 8 judgment creditor may deliver an application for issuence of an earnings withholding order to 2
registered process server who may then issue an earnings withholding order.
(b) If the registered process server has issued the earnings withholding order, the registered process server,
before serving the earnings withholding order, shall eause-te-be-depesited- deposit with the levying officer a copy
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of the writ of execution, the application for issuance of an earnings withholding order, and’ a copy of the earnings
withholding order, and the-fee,3s- shail pay the fee provided by Section 26750 of the Government Code.
(c) A registered process server may serve an earnings withholding order on an employer whether the earnings
withholding order was Issued by @ levying officer or by a registered process server, but no earnings withholding
order may be served after the time specified In subdivision (b) of Section 699.530. In performing this function,
the registered process server shail serve upon the designated employer all of the following:
(2) The origina} and one copy of the earings withholding order.
(2) The form for the employee's return,
(3) The notice to the employee of the earnings withholding order,
{4) A copy of the form that the judgment debtor may use to make a claim of exemption.
(5) A copy of the form the judgment debtor may use to provide 2 financial statement.
(6) A copy of the employer's instructions referred to in Section 706.127, except as otherwise prescribed in rules
adopted by the Judicial Council.
(d) Within five court days after service under this section, alf of the following shalt be filed with the levying
officer:
(2) The writ of execution, if it Is not already in the hands of the levying officer.
(2) Proof of service on the employer of the papers listed in subdivision (c).
(3) Instructions in writing, as required by the provisions of Section 687.010.
(e) If the fee provided by Section 26750 of the Government Code has been paid, the levying officer shall perform
all other duties required by this chapter as If the levying officer had served the earnings withholding order, If the
registered process server does not comply with subdivisions (b), where applicable, and (d), the service of the
earnings withholding order (s ineffective and the fevying officer shat is not be- required to perform any duties
under the erder; order and may terminate the order and may release any withheld earnings to the judgment
debtor.
(f) The fee for services of a registered process server under this section is- shail be allowed as a recoverable cost
pursuant to Section 1033.5.
SEC. 4, Section 706,122 of the Code of Civil Procedure Is amended to read:
706.122. The “notice to employee of earings withholding order” shall contain a statement that informs the
employee in simple terms of the nature of a wage garnishment, the right to an exemption, the procedure for
clsiming an exemption, and any other information the Judicial Council determines would be useful to the
employee and appropriate for inclusion in the notice, including all of the following:
(2) The named employer hes been ordered to withhgld from the earings of the judgment debtor the amounts
required to be withheld under Section 706.050, at such other amounts as are specified in the earnings
withhalding order, and to pay these amounts over to the levying officer for transmittal to the person specified In
the order in payment of the judgment described in the order,
(b) The manner of computing the amounts required to be withheld pursuant to Section 706.050.
{c) The judgment debtor may be able to keep more or all of the judgment debtor's earnings if the judgment
debtor proves that the additional earnings are necessary for the support of the judgment debtor or the judgment
debtor's famity supported in whole or in part by the judgment debtor.
(d) If the judgment debtor wishes a court hearing to prove that amounts should not be withheld from the
judgment debtor's earnings because they are necessary for the support of the judgment debtor or the judgment
debtor's family supported in whole or in part by the judgment debtor, the judgment debtor shall file with the
levying officer an original and one copy of the “judgment debtor's claim of exemption" and an original and one
copy of the “judgment debtor's financial statement.”
SEC. 8, The provisions of this act are severable. If any provision of this section or tts application is held invalid,
that invatidity shall not affect other provisions or applications that can be given effect without the invalid provision
or application.
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ft’ LEGISLATIVE INFORMATION
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$B-233 Debt buying. (2013-2034)
eesti mee ~ sees a ane e
fone [action
OWA AE ‘Cheptered by Secratary of State, Chapter 64, Btotutes ef 2013.
07/14/33 Approved by the Govemer,
--
07/0313 Evatt ond prevented to We Gaveroret3 pin,
07/05/13 tn Senate. Orcere9 to engressiig end enroting.
07/02/13 Read third ume. Passed. (Ayes 72. Noss 0. Page 224 3.) Ordered to the Senate.
06/26/23 Reed second time, Ordered to thud reading.
5/13 From committee: Do pass. (Ayes 10, Noes 0.) (Juno 24).
06/18/33 From committea: De pass and resreterto Com, On 8. & F. (Ayes 9, Noes 0.) {June 8), Re-referredto Com, on 8. 8 F.
06/30/13 Referreg to Coms, Bn JUD. and B, BF,
05/24/n3 ‘in Assembly. Read first tine. Held at Desk,
”
os/2e/33 Read third ume, Passed. (Aves 38. Noes B. Page 2042.) reered tothe assembi.
ao
OS/16/13 Read second time, Ordered to thitd resding.
08/35/13 ‘Ordered to second reading.
~
as/1s/13 Read third time and amensed.
5/09/13 ‘Read second time. Droered to third reading
5/0813 From committee: Do pss. (Ayes 6. Noes 0. Page B82.) {May 7)
94 /26113 Set for hearing May 7.
0423/33 Revd second tie and amended, Re-referred to Com. on JUD.
04/38/13 From commintee: Do pass us amended and ra-refer to Com. On 3UO, (Ayes 6. Nove 0, Pege $90.) (Apri 17).
09/05/13 Set for hearing April 37,
94/033 Re-rot 10 ta. Coms. On B. BF, eno 30D,
oeyosna From committee with puthors amendments. Rewd second time and amended. Re-relerred to Com. on RLS
oaaayas Retertedto Com. on RLS.
os2ns Trom printer. may be acted upon an or after March 14.
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Plaintiff's Memorandum in Support of Judgment
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INFORMATION
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8-233 Debt buying. (7013-2014)
oo men a a may
Current Version: 07/11/33 - Chaptered Compared to Version: [04/04 Ver
‘SECTION 1. The Legisiature finds and deciares the following:
(a) The collection of debt purchased by debt buyers has become a significant focus of public concern due to the
adequacy of documentation required to be maintained by the Industry in support of Its collectian activities and
Utigation
(b) State law does not currently prescribe the specific nature of documentation that a debt buyer must maintain
‘and produce in a legal action on the debt,
({c) Documentation used to support the coflection af a debt must be sufficient to prove that the individual who is
being asked to pay the debt is In fact the individuat assaclated with the original contract or agreement, and thet
the amount of indebtedness is accurate.
(¢) 1t is important to create documentation and process standards for thé collection of consumer debt that all
Interested parties can easily understand,
(@) This act is not intended to affect the Jegal enforceability, or collectabllity, of a charged-off consumer debt, but
Js intended to Impose enforceable standards upon the collection end Iitigation of consumer debt that has been
purchased by a debt buyer following the consumer dedt's charge offby a creditor.
42} (f) Setting specific documentation and process standards will protect consumers, provide needed clarity ta
courts, and establish clearer criteria for debt buyers and the collection industry.
(9) This act shalt be known, and may be cited, as the Fair Debt Buylng Practices Act
SEC. 2, Title 1.6C.5 (commencing with Section 2788.50) is added to Part 4 of Division 3 of the Civil Code,
read;
TITLE 1,6C.5, Fair Debt Buyers Buying Practices-Aet
1788.80, (a) As used in this title,
40) (1) Aeused-in-this-titler“debt- "Debt buyer” means @ person or entity that is regularly engages In the
business of purchasing charged-off consumer 4 r ~ered t-ceneumner
debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an
attorney-at-law for collection litigation. “Debt buyer” does not mean & person or entity that acquires a charged-off
consumer debt incidental to the purchase of a portfollo predominantly consisting of consumer debt that has not
been charged off.
83 (2) Y esd ~pr asidiary; Sh Ft hat “contre ver the
“Charged-off consumer debt” means a consumer debt that has been
removed from a creditor's books as an asset and treated as a loss or expense.
fe} (b) The acquisition by a check services company of the right to collect on a paper or electronic check
instrument, Including an Automated Clearing House item, that has been returned unpald to a merchant does not
constitute @ purchase of delinquent consumer debt under this title.
46) (¢) Terms defined in Title 1.6C (commencing with Section 1788) shall apply to this title,
(d) This title shall apply to debt buyers with respect to al! consumer debt sold or resold on or after January 3,
2014,
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1788.52. (a) A debt buyer shalt not make any written statement to a debtor in an attempt to collect a consumer
debt unless the debt buyer possesses the following information:
(1) That the debt ouyer is the sole owner of the debt at isster Issue or has authority to assert the rights of all
owners of the debt.
(2) The debt balance at charge off and an explanation of the amount, nature, and reason for all post-charge-off
fees-and-eharges;- interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of
the debt. This paragraph shalt not be deemed to require 2 specific temization-af-eeeh-charge: itemization, but the
explenation shall identify separately the charge-off balance, the total of any post-charge-off Interest, and the total
of any post-charge-off fees.
(3) The date of default or the date of the fast payment,
(4) The name and an address of the charge-off creditor at the time of charge off, and the charge-off creditor’s
account number associated with the debt. The charge-off creditor's name and address shail be in sufficient form
80 as to reasonably identity # the charge-off creditor.
(5) The name and fast known address of the debtor as they appeared In the charge-off creditor's records prior to
the sale of the debt. WhereJf the debt was sold prior to January 1, 2014, the name and last known address of
the debtor as they appeared in the debt owner's records on December 31, 2013, shall be sufficient.
(6) The names and addresses of all persons or entities that purchased the debt after charge off, Including the
plointi-debt-auyer- debt buyer making the written statement. The names and addresses ef-these-persens-or
entities- shall be in sufficient form so as to reasonably identify ther: each Such purchaser.
(b) A debt buyer shalt not make any written statement to a debtor In an attempt to collect a consumer debt
unless the debt buyer has access to a copy of 8 contract or other document evidencing the debtor's agreement to
the debt. If the claim is based on debt for which no signed contract or agreement exists, the debt buyer shall
have access to a copy of a document provided to the debtor while the account was active, demonstrating that the
debt was incurred by the debtor. For @ revolving credit account, the most recent monthly statement recording a
purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement.
(c) A debt buyer shall provide the information or documents Identified In subdivisions (3) and (b) to the debtor
without charge within 15 calendar days of receipt of a debtor's written request for Information regarding the debt
or proof of the debt. If the debt buyer cannot provide the Information or documents within 35 calendar days, the
debt buyer shall cease all collection of the debt until the debt ouyer provides the debtor the information or
documents described in subdivisions (a) and (b). Except as provided otherwise In this title, the request by the
debtor shai) be consistent with the validation requirements contained in Section 1692g of Title 15 of the United
States Code. A debt buyer shall provide al debtors with whom it has contact with an active postal address and
an-active-e-mai-address- to which these requests can be sent. A debt buyer may also provide an active &
sei email address to which these requests can be sent and fre through which information and documents can
be delivered, if the parties agree.
(d) (1) A debt buyer shail Include with its first written communication with the debtor in na smalier than 12-point,
type, 8 separate prominent notice that provides:
“You may request records showing the following: (1) that [insert name of debt buyer] has the right to seek
collection of the debt; (2) the debt balance, including any-additienat-fees-and-charges;- an explanation of any
interest charges and additional tees; {3} the date of default or the date of the last payment; (4) the name of the
charge-off creditor and the account number associated with the debt; (5) the name and last known address of
the debtor as It appeared In the charge-off creditor's or debt buyer's records prior to the sale of the debt, as
appropriate; end (6) the names of all persons or entities that have purchased the debt. You may also request
from us a copy of the contract or other document evidencing your agreement tc the debt.
“A request for these records may be addressed to: [Insert debt buyer's active malling edéress}-* address and
email address, if applicable}.”
(2) When collecting on a time-barred debt where the debt is not past the date for obsolescence provided for in
Section 605(@) of the federal Fair Credit Reporting Act (15 U.S.C, Sec. 1681¢):
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evmapars VeLsiVNs Page 3 of 7
“The taw limits how long you can be sued on a debt, Because of the age of your debt, we will not sue yau for tt, If
you do not pay the debt, [Insert name of debt buyer] may [continue to) report {t to the credit reporting agencies
85 unpaid-" unpaid for as long as the law permits this reporting.”
(3) When. collecting on a@ time-barred debt where the debt is past the date for obsolescence provided for in
‘Section
Preview
FILED Brian N. Winn (State Bar No. 86779) SAN MATEO COUNTY Laura M. Hoalst (State Bar No. 101082) NOY 1 9 2018 John E. Gordon (State Bar No. 180053) Jason M. Burrows (State Bar No. 309882) af Amit Taneja (State Bar No, 304559) ZVIA a Grace Gail Cara (State Bar No. 315558) PAY CLER Adonia Tan (State Bar No. 317432) Winn Law Group, A Professional Corporation iu CLJ—~04159 110 E Wilshire Ave Ste 212, Fullerton CA 92832 | Rg for Judicial Notice ‘Telephone: (714) 446-6686, Fax No. (714) 446-6 File No: 18-07297-0-CDG-DGR- (19104 00) Attorneys for Plaintiff CAD SUPERIOR COURT OF CALIFORNIA 10 i SAN MATEO COUNTY, REDWOOD CITY DISTRICT 12 CAVALRY SPV I, LLC, as assignee of Case No. 18CLJ04159 13 SYNCHRONY BANK FKA GE CAPITAL 14 RETAIL BANK, Limited Civil Case 15 Plaintiff, PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE AND 16 VS. SUPPLEMENTAL REFERENCE 17 MEMORANDUM OF COMPARISON JAYSON AROCHA, et al. EXHIBITS FOR LEGISLATIVE 18 HISTORY OF SB 233 and SB 890 Defendant(s) 19 Complaint Filed: 8/13/18 20 21 Plaintiff hereby requests the Court take judicial notice of the attached documents as 22 legislative history discussing Senate Bill 233, and Senate Bill 890 (its predecessor), to show 23 the purpose of the statute enaction and the deletion of specific language in 24 25 CivilC: le section 1788.60: 26 (B) For the purpose of this section, the only evidence sufficient to establish the amount 27 and nature of the debt shal] be properly authenticated business records that satisfy the 28 Page 1 PLAINTIFF'S MEMORANDUM OF CASE IN SUPPORT OF REQUEST FOR JUDGMENT “Ye es %, ty.”7. % G We %, pO 1 requirements of Sections 1271 and 1272 of the Evidence Code. The authenticated records shall include the following items:” Exhibit A: SB - 233 Debt buying with Bill’s History. (Pages 1-7, and page 8) - page 3 Exhibit B: SB - 233 Comparison to Version 04/01/13 (pages 1-7) - page 11. Exhibit C: SB - 890 Comparison to Version 05/17/11 (pages 1-7) - page 19. Exhibit D: SB - 890 Compared to Version 02/08/11 (page 1-6) - page 28. Also attached are documents for analyses and history of the enactment of the statute Exhibit E: Bill Analysis (table) - page 35. 10 11 Exhibit F: Senate Banking and Financial Institutions dated 04/15/13 (pages 1-8) - page 37. 12 Exhibit G: Senate Floor Analyses dated 05/17/13 (pages 1-8) - page 46. 13 Exhibit H: Senate Judiciary Committee dated 05/06/13 (pages 1-12) - page 55. 14 Plaintiff highlights page 23 herein for deletion of the hearsay requirement referenced. 1S Thereby declare, under penalty of perjury under the laws of the state of California, that 16 17 the attached documents “Compare Versions” with dates designated, and analysis, are true 18 copies of documents pulled from the website identified as “California Legislative Information”, 19 its address is set forth on the bottom of the page. 20 Dated: October 30, 2018 21 BY FAX WINN LAW GROUP, APC 22 <= 23 {] Brian N. Winn 24 { ] Laura M. Hoalst [] John E. Gordon 25 { ] Jason M. Burrows 26 Amit Taneja [ ] Grace Gail Cara 27 [] Adonia Tan Attorney for Plaintiff 28 Page 2 PLAINTIFF'S MEMORANDUM OF CASE IN SUPPORT OF REQUEST FOR JUDGMENT 10 i 12 18 14 15 16 17 18 19 20 21 22 23 24 26 26 ExhibitA 27 SB - 233 Debt buying with Bill's History. (Pages 1-7, and page 8). 28 P. 3 Plaintiff's Memorandum in Support of Judgment suuay 8 Law AS Amended Page 1 of 6 td Byrn sum, RFE LEGISLATIVE INFORMATION Home | Bi infomation [ California Law {Publications ii ‘Other Resources | My Subscriptions ] My Favorites ‘$B-233 Debt buying, (2013-2024) ae anne SECTION 1. The Legislature finds and declares the following: (2) The collection of debt purchased by debt buyers has become a significant focus of public concern due to the avequacy of documentation required to be maintained by the industry in support of its collection activities and Atigation. (b) State law does not currently prescribe the specific nature of documentation that 2 debt buyer must malntein and produce in a fegal action on the debt. (¢) Oacumentation used to support the collection of a debt must be sufficient to prove that the individual who is being asked to pay the debt Is In fact the Individual associated with the original contract or agreement, and that the amount of indebtedness Is accurate. (d) It Is important to create documentation and process standards for the collection of consumer debt that all interested parties can easily understand, {e) This act is not intended to affect the legal enforceability, or collectabllity, of a charged-off consumer debt, is Intended to impose enforceable standards upon the collection and litigation of consumer debt that has been purchased by a debt buyer following the consumer debt's charge offby a creditor. (f) Setting specific documentation and process standards will protect consumers, provide needed clarity to courts, and establish clearer criterta for debt buyers and the collection industry. 9) This act shall be known, and may be cited, as the Fair Debt Buying Practices Act, SEC. 2. Tite 1.6C,5 (commencing with Section 1788.50) is added to Part 4 of Division 3 of the Civil Cade, to read: TITLE 1.6C.5, Fair Debt Buying Practices 1768.50, (2) As used in this title; (1) "Bebt buyer” means 8 person or entity that is regularly engaged in the business of purchasing charged-off consumer debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an attorney-at-faw for collection litigation. “Debt buyer” does not mean @ person or entity that acquires a charged -off consumer debt incidental to the purchase of a portfolla predominantty consisting of consumer debt that has not been changed off, (2) "Chargea-off consumer debt“ means a consumer debt thet has been removed trom a creditor's books as an asset and treated as a loss or expense. (6) The acquisition by 8 check Services company of the right to collect on a paper or electronic check Instrument, including an Automated Clearing House (tem, that has been returned unpald to a merchant does not constitute @ purchase of delinquent consumer debt under this title, (¢) Terms defined in Title 1.6C (commencing with Sectlon 1788) shall apply to this title. (a) This title shall apply to debt buyers with respect to all consumer debt sold or resold on or after January J, 2014. 1788.62, (a) A debt buyer shall not make any written statement to 2 debtor in an attempt to collect a consumer debt unless the debt buyer possesses the following information: (J) That the debt buyer Is the sole awner of the debt at issue or has authority to assert the rights of all owners of the debt. ~Y- ?hill iA=IN1IINT ANNA Client dinemeen hitp:/Neginfo legislature.ca.gov/faces/billComparexhtml Joaay’s Law As Amended Page 2 of 6 (2) The debt dalance at charge off and en explanation of the amount, nature, and reason for all post-charge-off Interest and fees, if any, impased by the charge-off creditor or any subsequent purchasers of the debt. This paregraph shalt not be deemed to require 2 specific Kemization, but the explanation shall identify separetely the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees, (3) The date of default or the date of the last payment. (4) The name and an address of the charge-off creditor at the time of cherge off, and the charge-off creditor's account number associated with the debt. The charge-off creditor's name and address shal! be in sufficient form 50 as to reasonably identify the charge-off creditor. (5) The name and last known eddress of the debtoras they appearedin the charge-off creditor’s records prior to the sale of the debt. If the debt was sold prior to January 1, 2014, the name and last known address of the debtor as they appeared in the debt owner's records on December 31, 2013, shall be sufficient. {6) The names end addresses of ail persons or entitles that purchased the debt after charge off, including the debt buyer making the written statement. The nemes and addresses shall be in sufficient form so as to reasonably identify each such purchaser. (b) A debt buyer shall not make any written statement to a debtor in an attempt ta collect a cansumer debt unless the debt buyer has access to a copy of & contract ar other document evidencing the debtor's agreement to the debt. If the claim is besed on debt for which na signed contract or agreement exists, the debt buyer shalt have access toa copy of 8 document provided to the debtor while the account was active, demonstrating that the debt was incurred by the debtor. For » revolving credit account, the most recent monthly statement recording purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement, (c) A debt buyer shall provide the information or documents identified in subdivisions (a) end (b) to the debtor without charge within 15 calendar days of receipt of a debtor's written requast for Information regarding the debt or proofof the debt. Jf the debt buyer cannot provide the information or documents within 15 calendar days, the debt buyer shall cease all collection of the debt until the debt buyer provides the debtor the information or documents desctibed in subdivisions (a) and (b). Except as provided otherwise in this title, the request by the debtor shall be cansistent with the validation requirements contained in Section 16929 of Title 15 of the United States Code. A debt buyer shail provide afl debtors with whom It has contact an active postal address to which these requests can be sent. A debt buyer may alsa provide an active email address to which these requests can be sent and through which information and documents can be delivered, if the parties agree, (a) (1) A debt buyer shall include with its first written communication with the debtor in no smaller than 12-point type, & separate prominent notice that provides: “You may request records showing the following: (1) that [Insert name of debt buyer) has the right to seek collection of the debt; (2) the debt balence, including 8n explanation of any interest charges and additional fees; (3) the date of default or the data of the last payment; (4) the name of the charge-off creditor and the account number associated with the debt; (5) the name and last known address of the debtoras It appeared in the charge voft creditor's or debt buyer's records prior to the sale of the debt, es appropriate; and (6) the names of all persons or entities that have purchased the debt. You may also request from us e@ copy of the contract or other document evidencing your agreement to the debt. “A request for these records may be addressed to: {insert debt buyer's active mailing address and email address, if applicable)" (2) When collecting on 2 time-barred debt where the debt is not past the date for obsolescence provided for in Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681¢): “The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it. If you do not pay the debt, [insert name of debt buyer] may (continue to] report it to the credit reporting agencies as unpald for as long as the law permits this reporting.* (3) When collecting on @ time-barred debt where the debt is past the date for obsolescence provitted for in Section 608(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681¢): -5- hitp:/eginfo. legislature.ca.gov/faces/billComnareClient vhtmiMhilt {4-207 2901 anenane sine 1uuay’s Law As Amended Page 3 of 6 “The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for It, and we will not report it to any credit reporting agency.” (e) If b language other than English Is principally used by the debt Luyer in the initial oral contact with the debtor, the notice required by subdivision (d) shall be provided to the debtor in thet language within five working days, (D An the event of 2 conflict between the requirements of subdivision (d) and federal law, so that it is impracticable to comply with both, the requirements of federal law shall prevalt. 1788.56. (2) All settlement agreements between a debt buyer and a debtcr shell be documented in open court or otherwise reduced to writing, The debt buyer shall ensure that @ copy of the written agreement is provided to the debtor. (b)A debt buyer that recelves payment on a debt sheil provide, within 20 celendar days, 2 receipt or monthly statement, to the debtor. The receipt or statement shall clearly and conspicuously show the amount and date paid, the name of the entity paid, the current account number, the name of the charge-off creditor, the account number issued by the charge-off creditor, and the remaining balance owing, if any. The receipt or statement may be provided efectroniceily if the parties agree. (c) A debt buyer that accepts a payment as payment in full, or as @ full and final compromise of the debt, shell provide, within 30 calendar days, a final statement that complies with subdivision (b). A debt buyer shalt not sett an interest in @ resolved debt, or any personal or financial information related to the resolved debt. 1788.56. A debt buyer shall not bring suit or initiate en arbitration or other tegal proceeding to collect 4 consumer debt if the applicable statute of limitations on the debt buyer's claim has expired. 1788.58, In an action brought by a debt buyer on a consumer debt: (a) The complaint shail allege all of the following: (1) That the pleintiftis a debt buyer. {2) The npture of the underlying debt and the consumer transaction or transactions from which it is derived, in 2 short and plain statement. (3) That the debt buyer is the sole owner of the debt at issue, or has authority to assert the rights of all owners of the debt. (4) The debt balance at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, Imposed by the cherge-off creditor or any subsequent purchasers of the debt. This paragraph shall not be deemed to require @ specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-of fees. (5) The date of default or the date of the last payment. (6) The name and an address of the cherge-off creditor at the time of charge off, end the charge-off creditor’s account number associated with the debt. The charge-off creditor's name and address shalt be in sufficient form $0 as to reasonably identify the charge-off creditor. (7) The name and last known address of the debtor as they appeared in the charge-off creditor's records prior to the sale of the debt. /f the debt was sold prior to January I, 2014, the debtor's name and last known address as they appeared in the debt awner’s records on December 31, 2013, shal) be suffictent. (8) The names and addresses of ali persons or entities that purchased the debt after charge off, including the plaintiff debt buyer. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser. 9) That the debt buyer has complied with Section 1788.52. (0) A copy of the contract or other document described in subdivision (b) of Section 1788.52, shallbe attached to the complaint. : (¢) The requirements of this tide shall aot be deemed to require the disclosure in public records of personal, financial, or medical information, the canfidentiality of which is protected by any state or federal law. —-b- ane v hen m , natnese - hitp:/Aeginfo Jegislature.ca. gov/faceshillCanmmare avuay o Law AS Amended Page 4 of 6 1788.60. (3) In an action initiated by 2 debt buyer, no defauft or other judgment may be entered against a debtor unless business records, authenticated through @ sworn decleration, are submitted by the debt buyer to the court to establish the facts required to be alleged by paragraphs (3) to (&), inclusive, of subdivision (a) of Section 1788.58. (8) No default or other judgment may be entered against a debtor unless 2 copy of the contract or other document described in subdivision (b) of Section 1788.52, authenticated thraugh a sworn declaration, has been submitted by the debt buyer to the court. (¢) In any action on @ consumer deht, if a debt buyer plaintiff seeks a default Judgment and has not complied with the requirements of this tide, the court shaft not enter a default judgment for the plaintiff and may, fn its discretion, dismiss the action, (0) Except as provided in this title, this section is not intended to modify or otherwise amend the procedures established in Section S85 of the Code of Civil Procedure, 1788.62. (a) In the case of an action brought by an individual or individuals, a debt buyer thet violates any Provision of this title with respect to any person shall be fiable to that person in an amount equal to the sum of the following: {1) Any actual demages sustained by that person as a result of the violation, Including, but not limited to, the amount of any judgment obtained by the debt buyer as a reswit of a time-barred sult to collect a debt from that person. (2) Statutory damages in an amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000), (b) In the case of a class action, a debt buyer that violetes any provision of this title shall be liable tor any statutory damages for each named plaintiff as provided in paragraph (2) of subdivision (a), If the court finds that the debt buyer engaged in a pattern andpractice of violating any provision of this title, the court may awerd additional damages ta the class in an amount not to exceed the lesser of five hundred thousand dollars $500,000) or 1 percent of the net worth of the debt buyer. (c) G1) In the case of any successful action to enforce Hebility under this section, the court shal! award costs of the action, together with reasonable attorney's fees as determined by the court. (2) Reasonable attomey's fees may be awarded to a prevailing debt buyer upon a finding by the court that the plaintiff's prosecutian of the action was not in good faith, (0) In determining the amount of lability under subdivision (b), the court shall consider, among other relevant factors, the frequency and persistence of noncompliance by the debt buyer, the nature of the noncompliance, the resources of the debt buyer, and the number of persons adversely affected. (e} A debt buyer shall have no civil lability under this section if the debt buyer shows by 3 preponderance of evidence that the violation was not Intentional and resulted from a bons fide error, end occurred notwithstanding the maintenance of procedures reasonably adopted to avofd any error. (0) An action to enforce any hability created by this title shall be draught within one yeor from the date of the last violation. (g) Recovery in an action brought under the Rosenthal Fair Debt Collection Practices Act {Title 1.6C (commencing with Sectian 1788)) or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) shall preclude recovery for the same acts in an action brought under this Utle. 1788.64, Any waiver of the provisions of this title is contrary to public policy, and is void end unenforceable. SEC. 3, Section 581.5 is added to the Code of Civil Procedure, to read: 581.5, in a case involving consumer debt, as defined in Section 1788.2 of the Civil Cove, and as regulated under Title 1.6C.S (commencing with Section 1788.50) of Part 4 of Division 3 of the Civil Code, If the defendant debtor appears for trial on the scheduled trial date, and the plaintiff debt buyer either feils to appear or is not prepared to proceed fo trial, and the court does not find a good cause for continuance, the court may, in Its discretion, dismiss the action with or without prejudice, Notwithstanding any other isw, in this Instance, the court may award the defendant debdtor’s costs of preparing for trial, Including, but not limited to, fost wages and transportation expenses, _y- te neers http:/Meginfo.legislature.ca.gov/faces/billComnareMiont when-19 een v vaw oo Auended Page 5 of 6 SEC. 4, Section 700.010 of the Code of Civil Pracedure is amended to read; 700.040, (2) At the time of levy pursuant to this article or promptly thereafter, the levying officer shall serve a copy of the following on the judgment debtor: (1) The writ of execution. (2) A notice of levy. (3) If the judgment debtor is a natural person, @ copy of the form lsting exemptions prepared by the Judicial Council pursuant to subdivision (c) of Section 682.030, the list of exemption emounts published pursuant to subdivision (¢) of Section 703.150, a copy of the form that the judgment debtor may use to make a claim of exemption pursuant to Section 703.520, and a copy of the form the judgment debtor may use to provide 3 financial statement pursuant to Section 703.530. (4) Any affidavit of Identity, as defined In Section 680,135, for names of the debtor listed on the writ of execution. (b) Service under this section shall be made personally or by malt. SEC. 5. Section 706.303 of the Code of Civil Procedure is amended to read; 706,103. (a) The levying officer shall serve upon the designated employer aif of the (cloning: (1) The original and one copy of the earnings withhoiding order. (2) The form for the employer's return, (3) The notice to employee of earnings withholding order, (4) A copy of the form that the judgment debtor may use to make & claim of ‘exemption, (5) 4 copy of the form the judgment debtor may use to provide a financial statement. (b) At the time the levying officer mokes service pursuant to subdivision (a}, the levying officer shall provide the employer with @ copy of the employer's Instructions referred to in Section 706.227. The Judicial Councit may adopt rules prescribing the circumstances when compliance with this subdivision Is not required, {e) Na earnings withholding order shell be setved upon the employer after the time specified In subdivision (b) of Section 699.530. SEC. 6. Section 706.104 of the Code of Civil Procedure is amended to read: 796.104, Any employer who is served with an earnings withholding order shalt: (2) Deliver to the judgment debtor a copy of the earnings withholding order, the notice to employee of earnings withholding, a copy of the form that the judgment debtor may use to make & claim of exemption, and a copy of the form the judgment debtor may use to provide a financial statement within 10 days from the date of service. If the judgment debtor Is no flanger employed by the employer and the employer does not owe the employee any earnings, the employer is not required to make such delivery. The employer ls not subject to any civil lability for failure to comply with this subdivision, Nothing In this subdivision limits the powerof 8 caurt to hold the employer in contempt of court for failure to comply with this subdivision, (b) Complete the employer's return on the form provided by the levying officer and mail it by first-class mat!, postage prepaid, to the levying officer within 15 days from the date of service. If the earnings withholding order (s ineffective, the employer shall state in the employer's return that the order will not be complied with for this reason and shall return the order to the tevying officer with the employer's retum. SEC, 7. jection 706.108 of the Code of Civil Procedure is amended to read: 706.108. (a) If a writ of execution tras been Issued to the county where the judgment debtor's employer Is to be served and the time specified in subdivision (b) of Section 699,530 for levy on pruperty under the writ has not expired, 8 judgment creditor may deliver an application for issuence of an earnings withholding order to 2 registered process server who may then issue an earnings withholding order. (b) If the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholding order, shall eause-te-be-depesited- deposit with the levying officer a copy r i” ?hill id=201 2901 anonaes Client xhtml) see hup:/leginfo legislature.ca.gow/faces/billCompare vuuy o Law as Amended Page 6 of 6 of the writ of execution, the application for issuance of an earnings withholding order, and’ a copy of the earnings withholding order, and the-fee,3s- shail pay the fee provided by Section 26750 of the Government Code. (c) A registered process server may serve an earnings withholding order on an employer whether the earnings withholding order was Issued by @ levying officer or by a registered process server, but no earnings withholding order may be served after the time specified In subdivision (b) of Section 699.530. In performing this function, the registered process server shail serve upon the designated employer all of the following: (2) The origina} and one copy of the earings withholding order. (2) The form for the employee's return, (3) The notice to the employee of the earnings withholding order, {4) A copy of the form that the judgment debtor may use to make a claim of exemption. (5) A copy of the form the judgment debtor may use to provide 2 financial statement. (6) A copy of the employer's instructions referred to in Section 706.127, except as otherwise prescribed in rules adopted by the Judicial Council. (d) Within five court days after service under this section, alf of the following shalt be filed with the levying officer: (2) The writ of execution, if it Is not already in the hands of the levying officer. (2) Proof of service on the employer of the papers listed in subdivision (c). (3) Instructions in writing, as required by the provisions of Section 687.010. (e) If the fee provided by Section 26750 of the Government Code has been paid, the levying officer shall perform all other duties required by this chapter as If the levying officer had served the earnings withholding order, If the registered process server does not comply with subdivisions (b), where applicable, and (d), the service of the earnings withholding order (s ineffective and the fevying officer shat is not be- required to perform any duties under the erder; order and may terminate the order and may release any withheld earnings to the judgment debtor. (f) The fee for services of a registered process server under this section is- shail be allowed as a recoverable cost pursuant to Section 1033.5. SEC. 4, Section 706,122 of the Code of Civil Procedure Is amended to read: 706.122. The “notice to employee of earings withholding order” shall contain a statement that informs the employee in simple terms of the nature of a wage garnishment, the right to an exemption, the procedure for clsiming an exemption, and any other information the Judicial Council determines would be useful to the employee and appropriate for inclusion in the notice, including all of the following: (2) The named employer hes been ordered to withhgld from the earings of the judgment debtor the amounts required to be withheld under Section 706.050, at such other amounts as are specified in the earnings withhalding order, and to pay these amounts over to the levying officer for transmittal to the person specified In the order in payment of the judgment described in the order, (b) The manner of computing the amounts required to be withheld pursuant to Section 706.050. {c) The judgment debtor may be able to keep more or all of the judgment debtor's earnings if the judgment debtor proves that the additional earnings are necessary for the support of the judgment debtor or the judgment debtor's famity supported in whole or in part by the judgment debtor. (d) If the judgment debtor wishes a court hearing to prove that amounts should not be withheld from the judgment debtor's earnings because they are necessary for the support of the judgment debtor or the judgment debtor's family supported in whole or in part by the judgment debtor, the judgment debtor shall file with the levying officer an original and one copy of the “judgment debtor's claim of exemption" and an original and one copy of the “judgment debtor's financial statement.” SEC. 8, The provisions of this act are severable. If any provision of this section or tts application is held invalid, that invatidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. -9- id=20129N1 ancho29 vineinnys hitp:/Aeginfo.legislature.ca.gov/faces/billCompareClient.xhtm)7bill pe eee terre Page | of } fi, (@&)¢ rl CORTE ft’ LEGISLATIVE INFORMATION Home : Bill information t California Law {; Publications if ‘Other Resources j My Subscriptions | My Favodtes $B-233 Debt buying. (2013-2034) eesti mee ~ sees a ane e fone [action OWA AE ‘Cheptered by Secratary of State, Chapter 64, Btotutes ef 2013. 07/14/33 Approved by the Govemer, -- 07/0313 Evatt ond prevented to We Gaveroret3 pin, 07/05/13 tn Senate. Orcere9 to engressiig end enroting. 07/02/13 Read third ume. Passed. (Ayes 72. Noss 0. Page 224 3.) Ordered to the Senate. 06/26/23 Reed second time, Ordered to thud reading. 5/13 From committee: Do pass. (Ayes 10, Noes 0.) (Juno 24). 06/18/33 From committea: De pass and resreterto Com, On 8. & F. (Ayes 9, Noes 0.) {June 8), Re-referredto Com, on 8. 8 F. 06/30/13 Referreg to Coms, Bn JUD. and B, BF, 05/24/n3 ‘in Assembly. Read first tine. Held at Desk, ” os/2e/33 Read third ume, Passed. (Aves 38. Noes B. Page 2042.) reered tothe assembi. ao OS/16/13 Read second time, Ordered to thitd resding. 08/35/13 ‘Ordered to second reading. ~ as/1s/13 Read third time and amensed. 5/09/13 ‘Read second time. Droered to third reading 5/0813 From committee: Do pss. (Ayes 6. Noes 0. Page B82.) {May 7) 94 /26113 Set for hearing May 7. 0423/33 Revd second tie and amended, Re-referred to Com. on JUD. 04/38/13 From commintee: Do pass us amended and ra-refer to Com. On 3UO, (Ayes 6. Nove 0, Pege $90.) (Apri 17). 09/05/13 Set for hearing April 37, 94/033 Re-rot 10 ta. Coms. On B. BF, eno 30D, oeyosna From committee with puthors amendments. Rewd second time and amended. Re-relerred to Com. on RLS oaaayas Retertedto Com. on RLS. os2ns Trom printer. may be acted upon an or after March 14. oma AS Intreduced. Reno first time. To Com, on RLS. for assignment. Yo print. i. : —/o- hitp:/Meginfo.legislature.ca.gov/faces/billHistoryClient.xhtm]7bill_id=201320140SB233 1/26/2017 10 11 12 13 14 15 16 17 18 19 20 21 Exhibit B 22 SB - 233 Comparison to Version 04/07/13 (pages 1-7). 23 24 26 27 28 Plaintiff's Memorandum in Support of Judgment we setae vents Page ] of 7 Home Oy {i ods PRET LE GISLATIVE {i California Law INFORMATION | Publications 7i My Subsciiptions ti My Favorites : Bill information } ‘Other Resources i 8-233 Debt buying. (7013-2014) oo men a a may Current Version: 07/11/33 - Chaptered Compared to Version: [04/04 Ver ‘SECTION 1. The Legisiature finds and deciares the following: (a) The collection of debt purchased by debt buyers has become a significant focus of public concern due to the adequacy of documentation required to be maintained by the Industry in support of Its collectian activities and Utigation (b) State law does not currently prescribe the specific nature of documentation that a debt buyer must maintain ‘and produce in a legal action on the debt, ({c) Documentation used to support the coflection af a debt must be sufficient to prove that the individual who is being asked to pay the debt is In fact the individuat assaclated with the original contract or agreement, and thet the amount of indebtedness is accurate. (¢) 1t is important to create documentation and process standards for thé collection of consumer debt that all Interested parties can easily understand, (@) This act is not intended to affect the Jegal enforceability, or collectabllity, of a charged-off consumer debt, but Js intended to Impose enforceable standards upon the collection end Iitigation of consumer debt that has been purchased by a debt buyer following the consumer dedt's charge offby a creditor. 42} (f) Setting specific documentation and process standards will protect consumers, provide needed clarity ta courts, and establish clearer criteria for debt buyers and the collection industry. (9) This act shalt be known, and may be cited, as the Fair Debt Buylng Practices Act SEC. 2, Title 1.6C.5 (commencing with Section 2788.50) is added to Part 4 of Division 3 of the Civil Code, read; TITLE 1,6C.5, Fair Debt Buyers Buying Practices-Aet 1788.80, (a) As used in this title, 40) (1) Aeused-in-this-titler“debt- "Debt buyer” means @ person or entity that is regularly engages In the business of purchasing charged-off consumer 4 r ~ered t-ceneumner debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an attorney-at-law for collection litigation. “Debt buyer” does not mean & person or entity that acquires a charged-off consumer debt incidental to the purchase of a portfollo predominantly consisting of consumer debt that has not been charged off. 83 (2) Y esd ~pr asidiary; Sh Ft hat “contre ver the “Charged-off consumer debt” means a consumer debt that has been removed from a creditor's books as an asset and treated as a loss or expense. fe} (b) The acquisition by a check services company of the right to collect on a paper or electronic check instrument, Including an Automated Clearing House item, that has been returned unpald to a merchant does not constitute @ purchase of delinquent consumer debt under this title. 46) (¢) Terms defined in Title 1.6C (commencing with Section 1788) shall apply to this title, (d) This title shall apply to debt buyers with respect to al! consumer debt sold or resold on or after January 3, 2014, a~Ia- http://leginfo.legislature.ca.gov/faces/bill VersionsCompareClient.xhtml?bill_id>201320140,,. 2/9/2017 weep eee oD Page 2 of 7 1788.52. (a) A debt buyer shalt not make any written statement to a debtor in an attempt to collect a consumer debt unless the debt buyer possesses the following information: (1) That the debt ouyer is the sole owner of the debt at isster Issue or has authority to assert the rights of all owners of the debt. (2) The debt balance at charge off and an explanation of the amount, nature, and reason for all post-charge-off fees-and-eharges;- interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt. This paragraph shalt not be deemed to require 2 specific temization-af-eeeh-charge: itemization, but the explenation shall identify separately the charge-off balance, the total of any post-charge-off Interest, and the total of any post-charge-off fees. (3) The date of default or the date of the fast payment, (4) The name and an address of the charge-off creditor at the time of charge off, and the charge-off creditor’s account number associated with the debt. The charge-off creditor's name and address shail be in sufficient form 80 as to reasonably identity # the charge-off creditor. (5) The name and fast known address of the debtor as they appeared In the charge-off creditor's records prior to the sale of the debt. WhereJf the debt was sold prior to January 1, 2014, the name and last known address of the debtor as they appeared in the debt owner's records on December 31, 2013, shall be sufficient. (6) The names and addresses of all persons or entities that purchased the debt after charge off, Including the plointi-debt-auyer- debt buyer making the written statement. The names and addresses ef-these-persens-or entities- shall be in sufficient form so as to reasonably identify ther: each Such purchaser. (b) A debt buyer shalt not make any written statement to a debtor In an attempt to collect a consumer debt unless the debt buyer has access to a copy of 8 contract or other document evidencing the debtor's agreement to the debt. If the claim is based on debt for which no signed contract or agreement exists, the debt buyer shall have access to a copy of a document provided to the debtor while the account was active, demonstrating that the debt was incurred by the debtor. For @ revolving credit account, the most recent monthly statement recording a purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement. (c) A debt buyer shall provide the information or documents Identified In subdivisions (3) and (b) to the debtor without charge within 15 calendar days of receipt of a debtor's written request for Information regarding the debt or proof of the debt. If the debt buyer cannot provide the Information or documents within 35 calendar days, the debt buyer shall cease all collection of the debt until the debt ouyer provides the debtor the information or documents described in subdivisions (a) and (b). Except as provided otherwise In this title, the request by the debtor shai) be consistent with the validation requirements contained in Section 1692g of Title 15 of the United States Code. A debt buyer shall provide al debtors with whom it has contact with an active postal address and an-active-e-mai-address- to which these requests can be sent. A debt buyer may also provide an active & sei email address to which these requests can be sent and fre through which information and documents can be delivered, if the parties agree. (d) (1) A debt buyer shail Include with its first written communication with the debtor in na smalier than 12-point, type, 8 separate prominent notice that provides: “You may request records showing the following: (1) that [insert name of debt buyer] has the right to seek collection of the debt; (2) the debt balance, including any-additienat-fees-and-charges;- an explanation of any interest charges and additional tees; {3} the date of default or the date of the last payment; (4) the name of the charge-off creditor and the account number associated with the debt; (5) the name and last known address of the debtor as It appeared In the charge-off creditor's or debt buyer's records prior to the sale of the debt, as appropriate; end (6) the names of all persons or entities that have purchased the debt. You may also request from us a copy of the contract or other document evidencing your agreement tc the debt. “A request for these records may be addressed to: [Insert debt buyer's active malling edéress}-* address and email address, if applicable}.” (2) When collecting on a time-barred debt where the debt is not past the date for obsolescence provided for in Section 605(@) of the federal Fair Credit Reporting Act (15 U.S.C, Sec. 1681¢): - 18° http:/leginfo.legislature.ca.gov/faces/bil] VersionsCompareClient.xhtml?bill id=201320140 DAMONT evmapars VeLsiVNs Page 3 of 7 “The taw limits how long you can be sued on a debt, Because of the age of your debt, we will not sue yau for tt, If you do not pay the debt, [Insert name of debt buyer] may [continue to) report {t to the credit reporting agencies 85 unpaid-" unpaid for as long as the law permits this reporting.” (3) When. collecting on a@ time-barred debt where the debt is past the date for obsolescence provided for in ‘Section