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SB-318 Consumer protections: contracts and agreements to finance or secure a bail bond or immigration bond.(2019-2020)

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Date Published: 07/03/2019 09:00 PM
SB318:v96#DOCUMENT

Amended  IN  Assembly  July 03, 2019
Amended  IN  Senate  May 17, 2019
Amended  IN  Senate  March 25, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 318


Introduced by Senator Hertzberg
(Principal coauthor: Assembly Member Bonta)
(Coauthor: Assembly Member Weber)

February 15, 2019


An act to amend Sections 1632, 1761, 1788.2, and 1799.90 of the Civil Code, relating to civil law.


LEGISLATIVE COUNSEL'S DIGEST


SB 318, as amended, Hertzberg. Consumer protections: contracts and agreements to finance or secure a bail bond or immigration bond.
(1) Existing law requires a person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, before entering into specified contracts or agreements, to deliver to the other party a translation of the contract or agreement in the language in which the contract or agreement was negotiated. negotiated, including a loan or extension of credit secured other than by real property, or unsecured, for use primarily for personal, family, or household purposes.
This bill would make those provisions applicable to specify that “loan or extension of credit” includes a contract or agreement to finance or secure a bail bond or immigration bond for the release of a detained individual.
(2) Existing law, the Consumers Legal Remedies Act, makes unlawful certain acts identified as unfair methods of competition and unfair or deceptive acts or practices undertaken by a person in a transaction for the sale or lease of goods or services to a consumer, and defines “services” and “consumer” for purposes of those provisions.
This bill would include within the definition of “services” the securing or financing securing of a bail bond or immigration bond for the release of an individual from detention and would define “consumer” to include an individual who, for the purpose of their release or another person’s release from detention, seeks or acquires services to finance or secure a bail bond or immigration bond.
(3) Existing law, the Rosenthal Fair Debt Collection Practices Act, prohibits debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts and defines “consumer debt” and “consumer credit” for purposes of that act.
This bill would include within the definition of “consumer debt” money owing from a transaction for services to finance or secure a bail bond or immigration bond for the release of a detained individual.
(4) Existing law requires a creditor to deliver to a person a specified notice before the person is obligated on a consumer credit contract, and defines “consumer credit contract” for those purposes. purposes to include loans or extensions of credit secured by other than real property, or unsecured, for use primarily for personal, family, or household purposes.
This bill would include in that definition specify that “loans or extensions of credit” includes an agreement or contract between an individual and another party to finance or secure a bail bond or immigration bond for the release of an individual from detention.
(5) The bill would state that all of the changes specified above are declaratory of existing law, would make a legislative finding and declaration to this effect, and would also make other legislative findings and declarations relating to bail bonds and immigration bonds.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) The for-profit money bail system is a global anomaly and operates in just two countries worldwide: the Philippines and the United States.
(b) In the United States, this system requires people to pay a nonrefundable premium to private companies in order to secure release from detention. In many cases, people cannot afford to pay these premiums up front and enter into financing agreements to pay them off over time.
(c) To secure a commercial bail company’s services, a consumer is required to sign a contract that is legally complex, confusing, and often unfair. Further, a consumer is required to sign this contract during one of the most stressful moments of their life— a moment when their own or a loved one’s liberty is at stake.
(d) Various studies have shown that the commercial money bail system does not improve rates of appearance in court or enhance public safety. Instead, it has the coercive effect of inducing guilty pleas by individuals who cannot afford bail, may in fact be innocent, and simply want to be released from detention. This deprives an accused individual of a full and fair opportunity to defend their case.
(e) The commercial bail industry profits from low-income Californians by taking advantage of the failures and financial complexity of the money bail system.
(f) The commercial bail industry currently operates as if existing consumer protection laws do not apply to them, despite the fact that they routinely engage in activities that these laws aim to regulate.
(g) Additionally, the bail debt incurred by consumers often follows them for years after the underlying case has been resolved in the courts. This debt subjects them to harmful debt collection practices and threatens to negatively impact their credit.
(h) Consumers of commercial bail services are particularly vulnerable to predatory practices and are just as deserving of the protection afforded to California consumers who are purchasing other goods or services for personal, family, or household use.
(i) This bill does not change existing law. This bill simply restates existing law, clarifying that bail and immigration bond providers are subject to the Consumers Legal Remedies Act, the contract translation provisions of the Civil Code, the Rosenthal Fair Debt Collection Practices Act, and consumer credit contract provisions of the Civil Code.

SEC. 2.

 Section 1632 of the Civil Code is amended to read:

1632.
 (a) The Legislature hereby finds and declares all of the following:
(1) This section was enacted in 1976 to increase consumer information and protections for the state’s sizeable and growing Spanish-speaking population.
(2) Since 1976, the state’s population has become increasingly diverse and the number of Californians who speak languages other than English as their primary language at home has increased dramatically.
(3) According to data from the American Community Survey, which has replaced the decennial census for detailed socioeconomic information about United States residents, approximately 15.2 million Californians speak a language other than English at home, based on data from combined years 2009 through 2011. This compares to approximately 19.6 million people who speak only English at home. Among the Californians who speak a language other than English at home, approximately 8.4 million speak English very well, and another 3 million speak English well. The remaining 3.8 million Californians surveyed do not speak English well or do not speak English at all. Among this group, the five languages other than English that are most widely spoken at home are Spanish, Chinese, Tagalog, Vietnamese, and Korean. These five languages are spoken at home by approximately 3.5 million of the 3.8 million Californians with limited or no English proficiency, who speak a language other than English at home.
(b) Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into any of the following, shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, that includes a translation of every term and condition in that contract or agreement:
(1) A contract or agreement subject to the provisions of Title 2 (commencing with Section 1801) of, and Chapter 2b (commencing with Section 2981) and Chapter 2d (commencing with Section 2985.7) of Title 14 of, Part 4 of Division 3.
(2) (A) A loan or extension of credit secured other than by real property, or unsecured, for use primarily for personal, family, or household purposes.
(B) “Loan or extension of credit,” as used in this paragraph, includes, but is not limited to, a contract or agreement to finance or secure a bail bond or immigration bond for the release of a detained individual. For purposes of this paragraph, “bail bond” shall have the same meaning as in Section 1800.4 of the Insurance Code, and “immigration bond” means a bond executed pursuant to Section 103.6 of Title 8 of the Code of Federal Regulations. This subparagraph is declaratory of existing law.
(3) A lease, sublease, rental contract or agreement, or other term of tenancy contract or agreement, for a period of longer than one month, covering a dwelling, an apartment, or mobilehome, or other dwelling unit normally occupied as a residence.
(4) Notwithstanding paragraph (2), a loan or extension of credit for use primarily for personal, family, or household purposes in which the loan or extension of credit is subject to the provisions of Article 7 (commencing with Section 10240) of Chapter 3 of Part 1 of Division 4 of the Business and Professions Code, or Division 7 (commencing with Section 18000), or Division 9 (commencing with Section 22000) of the Financial Code.
(5) Notwithstanding paragraph (2), a reverse mortgage as described in Chapter 8 (commencing with Section 1923) of Title 4 of Part 4 of Division 3.
(6) A contract or agreement, containing a statement of fees or charges, entered into for the purpose of obtaining legal services, when the person who is engaged in business is currently licensed to practice law pursuant to Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code.
(7) A foreclosure consulting contract subject to Article 1.5 (commencing with Section 2945) of Chapter 2 of Title 14 of Part 4 of Division 3.
(c) Notwithstanding subdivision (b), for a loan subject to this part and to Article 7 (commencing with Section 10240) of Chapter 3 of Part 1 of Division 4 of the Business and Professions Code, the delivery of a translation of the statement to the borrower required by Section 10240 of the Business and Professions Code in any of the languages specified in subdivision (b) in which the contract or agreement was negotiated, is in compliance with subdivision (b).
(d) At the time and place where a lease, sublease, or rental contract or agreement described in subdivision (b) is executed, notice in any of the languages specified in subdivision (b) in which the contract or agreement was negotiated shall be provided to the lessee or tenant.
(e) Provision by a supervised financial organization of a translation of the disclosures required by Regulation M or Regulation Z, and, if applicable, Division 7 (commencing with Section 18000) or Division 9 (commencing with Section 22000) of the Financial Code in any of the languages specified in subdivision (b) in which the contract or agreement was negotiated, prior to the execution of the contract or agreement, shall also be deemed in compliance with the requirements of subdivision (b) with regard to the original contract or agreement.
(1) “Regulation M” and “Regulation Z” mean any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System and any interpretation or approval issued by an official or employee duly authorized by the board to issue interpretations or approvals dealing with, respectively, consumer leasing or consumer lending, pursuant to the Federal Truth in Lending Act, as amended (15 U.S.C. Sec. 1601 et seq.).
(2) As used in this section, “supervised financial organization” means a bank, savings association as defined in Section 5102 of the Financial Code, credit union, or holding company, affiliate, or subsidiary thereof, or any person subject to Article 7 (commencing with Section 10240) of Chapter 3 of Part 1 of Division 4 of the Business and Professions Code, or Division 7 (commencing with Section 18000) or Division 9 (commencing with Section 22000) of the Financial Code.
(f) At the time and place where a contract or agreement described in paragraph (1) or (2) of subdivision (b) is executed, a notice in any of the languages specified in subdivision (b) in which the contract or agreement was negotiated shall be conspicuously displayed to the effect that the person described in subdivision (b) is required to provide a contract or agreement in the language in which the contract or agreement was negotiated, or a translation of the disclosures required by law in the language in which the contract or agreement was negotiated, as the case may be. If a person described in subdivision (b) does business at more than one location or branch, the requirements of this section shall apply only with respect to the location or branch at which the language in which the contract or agreement was negotiated is used.
(g) (1) The term “contract” or “agreement,” as used in this section, means the document creating the rights and obligations of the parties and includes any subsequent document making substantial changes in the rights and obligations of the parties. The term “contract” or “agreement” does not include any subsequent documents authorized or contemplated by the original document such as periodic statements, sales slips or invoices representing purchases made pursuant to a credit card agreement, a retail installment contract or account or other revolving sales or loan account, memoranda of purchases in an add-on sale, or refinancing of a purchase as provided by, or pursuant to, the original document.
(2) The term “contract” or “agreement” does not include a home improvement contract as defined in Sections 7151.2 and 7159 of the Business and Professions Code, nor does it include plans, specifications, description of work to be done and materials to be used, or collateral security taken or to be taken for the retail buyer’s obligation contained in a contract for the installation of goods by a contractor licensed pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, if the home improvement contract or installation contract is otherwise a part of a contract described in subdivision (b).
(3) Matters ordinarily incorporated by reference in contracts or agreements as described in paragraph (3) of subdivision (b), including, but not limited to, rules and regulations governing a tenancy and inventories of furnishings to be provided by the person described in subdivision (b), are not included in the term “contract” or “agreement.”

(4)The term “contract” or “agreement,” as used in this section, includes, but is not limited to, a contract or agreement to secure and finance a bail bond or immigration bond for the release of a detained individual. For purposes of this subdivision, “bail bond” shall have the same meaning as in Section 1800.4 of the Insurance Code, and “immigration bond” means a bond executed pursuant to Section 103.6 of Title 8 of the Code of Federal Regulations. This paragraph is declaratory of existing law.

(h) This section does not apply to any person engaged in a trade or business who negotiates primarily in a language other than English, as described by subdivision (b), if the party with whom the person is negotiating is a buyer of goods or services, or receives a loan or extension of credit, or enters an agreement obligating themselves as a tenant, lessee, or sublessee, or similarly obligates themselves by contract or lease, and the party negotiates the terms of the contract, lease, or other obligation through the party’s own interpreter.
As used in this subdivision, “the party’s own interpreter” means a person, not a minor, able to speak fluently and read with full understanding both the English language and any of the languages specified in subdivision (b) in which the contract or agreement was negotiated, and who is not employed by, or whose service is made available through, the person engaged in the trade or business.
(i) Notwithstanding subdivision (b), a translation may retain the following elements of the executed English-language contract or agreement without translation: names and titles of individuals and other persons, addresses, brand names, trade names, trademarks, registered service marks, full or abbreviated designations of the make and model of goods or services, alphanumeric codes, numerals, dollar amounts expressed in numerals, dates, and individual words or expressions having no generally accepted non-English translation. It is permissible, but not required, that this translation be signed.
(j) The terms of the contract or agreement that is executed in the English language shall determine the rights and obligations of the parties. However, the translation of the contract or the disclosures required by subdivision (e) in any of the languages specified in subdivision (b) in which the contract or agreement was negotiated shall be admissible in evidence only to show that no contract was entered into because of a substantial difference in the material terms and conditions of the contract and the translation.
(k) Upon a failure to comply with the provisions of this section, the person aggrieved may rescind the contract or agreement in the manner provided by this chapter. If the contract for a consumer credit sale or consumer lease that has been sold and assigned to a financial institution is rescinded pursuant to this subdivision, the consumer shall make restitution to and have restitution made by the person with whom the consumer made the contract, and shall give notice of rescission to the assignee. Notwithstanding that the contract was assigned without recourse, the assignment shall be deemed rescinded and the assignor shall promptly repurchase the contract from the assignee.

SEC. 3.

 Section 1761 of the Civil Code is amended to read:

1761.
 As used in this title:
(a) “Goods” means tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not they are severable from the real property.
(b) (1) “Services” means work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.
(2) “Services” includes, but is not limited to, the securing or financing of a bail bond, as defined in Section 1800.4 of the Insurance Code, or an immigration bond pursuant to Section 103.6 of Title 8 of the Code of Federal Regulations, for the release of a detained individual. This paragraph is declaratory of existing law.
(c) “Person” means an individual, partnership, corporation, limited liability company, association, or other group, however organized.
(d) (1) “Consumer” means an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.
(2) “Consumer” includes, but is not limited to, an individual who, for the purposes of their release from detention or the release of another individual from detention, seeks or acquires services to finance or secure a bail bond, as defined in Section 1800.4 of the Insurance Code, or an immigration bond pursuant to Section 103.6 of Title 8 of the Code of Federal Regulations. This paragraph is declaratory of existing law.
(e) “Transaction” means an agreement between a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.
(f) “Senior citizen” means a person who is 65 years of age or older.
(g) “Disabled person” means a person who has a physical or mental impairment that substantially limits one or more major life activities.
(1) As used in this subdivision, “physical or mental impairment” means any of the following:
(A) A physiological disorder or condition, cosmetic disfigurement, or anatomical loss substantially affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine.
(B) A mental or psychological disorder, including intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. “Physical or mental impairment” includes, but is not limited to, diseases and conditions that include orthopedic, visual, speech, and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, and emotional illness.
(2) “Major life activities” means functions that include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(h) “Home solicitation” means a transaction made at the consumer’s primary residence, except those transactions initiated by the consumer. A consumer response to an advertisement is not a home solicitation.

SEC. 4.

 Section 1788.2 of the Civil Code is amended to read:

1788.2.
 (a) Definitions and rules of construction set forth in this section are applicable for the purpose of this title.
(b) The term “debt collection” means any act or practice in connection with the collection of consumer debts.
(c) The term “debt collector” means any person who, in the ordinary course of business, regularly, on behalf of themselves or others, engages in debt collection. 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.
(d) The term “debt” means money, property property, or their equivalent which that is due or owing or alleged to be due or owing from a natural person to another person.
(e) The term “consumer credit transaction” means a transaction between a natural person and another person in which property, services services, or money is acquired on credit by that natural person from such that other person primarily for personal, family, or household purposes.
(f) (1) The terms “consumer debt” and “consumer credit” mean money, property property, or their equivalent, due or owing or alleged to be due or owing from a natural person by reason of a consumer credit transaction.
(2) “Consumer debt” includes, but is not limited to, money owing from a transaction for services to finance or secure a bail bond, as defined in Section 1800.4 of the Insurance Code, or an immigration bond pursuant to Section 103.8 of Title 8 of the Code of Federal Regulations, for the release of an individual from detention. This paragraph is declaratory of existing law.
(g) The term “person” means a natural person, partnership, corporation, limited liability company, trust, estate, cooperative, association association, or other similar entity.
(h) Except as provided in Section 1788.18, the term “debtor” means a natural person from whom a debt collector seeks to collect a consumer debt which is due and owing or alleged to be due and owing from such person.
(i) The term “creditor” means a person who extends consumer credit to a debtor.
(j) The term “consumer credit report” means any written, oral oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (1) credit or insurance to be used primarily for person, family, or household purposes, or (2) employment purposes, or (3) other purposes authorized under any applicable federal or state law or regulation. The term does not include (a) (A) any report containing information solely as to transactions or experiences between the consumer and the person making the report; (b) (B) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or (c) (C) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys their decision with respect to that request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under any applicable federal or state law or regulation.
(k) The term “consumer reporting agency” means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages, in whole or in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer credit reports to third parties, and which uses any means or facility for the purpose of preparing or furnishing consumer credit reports.

SEC. 5.

 Section 1799.90 of the Civil Code is amended to read:

1799.90.
 As used in this title:
(a) (1)“Consumer credit contract” means any of the following obligations to pay money on a deferred payment basis, where the money, property, services or other consideration which is the subject matter of the contract is primarily for personal, family family, or household purposes:

(A)

(1) Retail installment contracts, as defined in Section 1802.6.

(B)

(2) Retail installment accounts, as defined in Section 1802.7.

(C)

(3) Conditional sales contracts, as defined in Section 2981.

(D)

(4) (A) Loans or extensions of credit secured by other than real property, or unsecured, for use primarily for personal, family or household purposes.
(B) “Loans or extensions of credit,” as described in this paragraph, includes, but is not limited to, an agreement or contract between an individual and another party to finance or secure a bail bond, as defined in Section 1800.4 of the Insurance Code, or an immigration bond, as described in Section 103.6 of Title 8 of the Code of Federal Regulations. This subparagraph is declaratory of existing law.

(E)

(5) Loans or extensions of credit for use primarily for personal, family or household purposes where such loans or extensions of credit are subject to the provisions of Article 7 (commencing with Section 10240) of Chapter 3 of Part I of Division 4 of the Business and Professions Code, Division 7 (commencing with Section 18000), Division 9 (commencing with Section 22000), or Division 10 (commencing with Section 24000) of the Financial Code, whether secured by real property or otherwise.

(F)

(6) Lease contracts, as defined in Section 2985.7.

(2)“Consumer credit contract” includes, but is not limited to, an agreement or contract between an individual and another party to finance or secure a bail bond, as defined in Section 1800.4 of the Insurance Code, or an immigration bond pursuant to Section 103.8 of Title 8 of the Code of Federal Regulations, for the release of an individual from detention. This paragraph is declaratory of existing law.

(b) “Creditor” means an individual, partnership, corporation, association or other entity, however designated, who enters into or arranges for consumer credit contracts in the ordinary course of business.