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§7.09 Debt Collection—Relief Available

 
Lesson 7:
Consumer
Protection
& Warranties

An action regarding debt collection practices must be brought in an individual capacity, within one year from the date the violation occurred. [CC §1788.30(f).]

A debt collector who violates the Act is liable for [CC §1788.30(a)–(c)]:

  • The consumer’s actual damages,
  • A penalty of not less than $100 nor more than $1000 for willful and knowing violations, and
  • Reasonable attorney fees and costs.

The litigation privilege cannot be used to shield violations of the Rosenthal Act. [Komarova v Natiional Credit Acceptance, Inc. (2009) 175 CA4th 324, 337, 340.]

The debt collector, however, is not liable if it can show that [CC §1788.30(d)–(e)]:

  • It took steps within 15 days of discovering or being notified of the violation to cure it, or
  • The violation was not intentional and occurred despite the maintenance of procedures designed to prevent it.

If the debtor intentionally violated his or her responsibilities, the debt collector may, when relevant, use this as a defense to suit by the debtor. [CC §1788.30(g).] You may award costs and reasonable attorney fees to a prevailing creditor if you find that the debtor’s prosecution or defense of the action was not in good faith. [CC §1788.30(c).] You have discretion to award costs to a prevailing defendant in a Fair Debt Collection Practices Act suit even when the lawsuit was not brought in bad faith and for the purpose of harassment. [Marx v General Revenue Corp. (2013) __ US __, 133 S Ct 1166, 1174–1177, 185 L Ed2d 242.]

 
 
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