Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

AB-699 Credit services organizations. (2019-2020)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 02/19/2019 09:00 PM
AB699:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 699


Introduced by Assembly Member Grayson

February 19, 2019


An act to amend Sections 1789.11, 1789.12, 1789.13, 1789.14, 1789.15, 1789.16, 1789.19, 1789.21, and 1789.25 of, and to add Section 1789.135 to, the Civil Code, relating to consumer credit.


LEGISLATIVE COUNSEL'S DIGEST


AB 699, as introduced, Grayson. Credit services organizations.
Existing law, the Credit Services Act of 1984, defines and regulates the activities of credit services organizations. Existing law generally defines a credit services organizations as people who, for payment, perform specified credit-related services, such as improving a buyer’s credit record and obtaining loans. Existing law requires credit services organizations to obtain a surety bond, as specified, before conducting business and requires that they register with the Attorney General, subject to a fee of $100. Among other things, existing law prohibits a credit services organization from receiving money before full and complete performance of the service the organization has agreed to perform and from failing to perform services agreed upon within 6 months. Existing law requires that credit services be provided pursuant to a written contract, which is required to contain specified statements, and, before the execution of a contract, a credit services organization must provide a prescribed information statement. Existing law authorizes a buyer of services who is injured by a credit services organization’s violation of the act, or its breach of contract, to bring an action for damages or injunctive relief, as specified. Existing law also authorizes any person, including a consumer credit reporting agency, to bring an action, as specified, for a violation of the act.
This bill would replace the term “buyer” with the term “consumer” for purposes of describing a person utilizing the services of a credit services organization and would prescribe other definitions in this regard. The bill would require a credit services organization to provide a consumer an itemized receipt of each service performed for a consumer, as specified, and would require the organization to perform services agreed upon within 60 days of contracting for those services. The bill would extend prohibitions on counseling a consumer to make untrue statements to other specified parties. Among other things, the bill would prohibit a credit services organization from impersonating a consumer, from failing to identify communications originating from the organization, or from submitting a dispute to a consumer credit reporting agency, creditor, debt collector, or debt buyer after a debt has been removed.
The bill would require a credit services organization to truncate information in certain communications. The bill would require a credit services organization to maintain certain information on file for 4 years. The bill would revise information that must be provided before a credit service contract, including a notice regarding the filing of complaints with the Attorney General, and would require the Attorney General to maintain an internet website for this purpose. The bill would revise statements that a credit services contract must include. The bill would prescribe statutory penalties that may be imposed on a credit services organization that willfully and knowingly violates the act and extend standing to recovery of these penalties by debtors, debt collectors, and debt buyers, among others. The bill would authorize the Attorney General to adjust the fee it is authorized to charge for registration of credit services organizations to reflect its costs.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 1789.11 of the Civil Code is amended to read:

1789.11.
 The Legislature finds and declares that:
(a) The ability to obtain and use credit has become of great importance to consumers, who have a vital interest in establishing and maintaining their credit worthiness and credit standing. As a result, consumers who have experienced credit problems may seek assistance from credit services organizations which offer to obtain credit or improve the credit standing of such consumers.
Certain advertising and business practices of some credit services organizations have worked a financial hardship upon the people of this state, often those who are of limited economic means and inexperienced in credit matters. Credit services organizations have significant impact upon the economy and well-being of this state and its people.
(b) The purposes of this title are to provide prospective buyers consumers of services of credit services organizations with the information necessary to make an intelligent decision regarding the purchase of those services and to protect the public from unfair or deceptive advertising and business practices.
(c) This title shall be construed liberally to achieve these purposes.

SEC. 2.

 Section 1789.12 of the Civil Code is amended to read:

1789.12.
 As used in this title:
(a) “Communication” means the conveyance of any information regarding a debt, credit record, credit history, or credit rating, directly or indirectly, to any person by any means or through any medium.
(b) “Consumer” means any natural person who is solicited to purchase or who purchases the services of a credit services organization.
(c) “Consumer credit reporting agency” means a consumer credit reporting agency that compiles and maintains files on consumers on a nationwide basis and that regularly engages in the practice of assembling or evaluating, and maintaining, for the purpose of furnishing consumer reports to third parties bearing on a consumer’s creditworthiness, credit standing, or credit capacity, each of the following regarding consumers residing nationwide:
(A) Public record information.
(B) Credit account information from persons who furnish that information regularly and in the ordinary course of business.

(a)

(d) “Credit services organization” means a person who, with respect to the extension of credit by others, sells, provides, or performs, or represents that he or she the person can or will sell, provide or perform, any of the following services, in return for the payment of money or other valuable consideration:
(1) Improving a buyer’s consumer’s credit record, history, or rating.
(2) Obtaining a loan or other extension of credit for a buyer. consumer.
(3) Providing advice or assistance to a buyer consumer with regard to either paragraph (1) or (2).

(b)

(e) “Credit services organization” does not include any of the following:
(1) Any person holding a license to make loans or extensions of credit pursuant to the laws of this state or the United States who is subject to regulation and supervision with respect to the making of those loans or extensions of credit by an official or agency of this state or the United States and whose business is the making of those loans or extensions of credit.
(2) Any bank, as defined in Section 102 of the Financial Code, or any savings institution, as specified in subdivision (a) or (b) of Section 5102 of the Financial Code, whose deposits or accounts are eligible for insurance by the Federal Deposit Insurance Corporation.
(3) Any person licensed as a prorater by the Department of Business Oversight when the person is acting within the course and scope of that license.
(4) Any person licensed as a real estate broker performing an act for which a real estate license is required under the Real Estate Law (Pt. 1 (commencing with Sec. 10000), Div. 4, B. & P.C.) and who is acting within the course and scope of that license.
(5) Any attorney licensed to practice law in this state, where the attorney renders services within the course and scope of the practice of law, unless the attorney is an employee of, or otherwise directly affiliated with, a credit services organization.
(6) Any broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission where the broker-dealer is acting within the course and scope of the regulation.
(7) Any nonprofit organization described in Section 501(c)(3) of the Internal Revenue Code that, according to a final ruling or determination by the Internal Revenue Service, is both of the following:
(A) Exempt from taxation under Section 501(a) of the Internal Revenue Code.
(B) Not a private foundation as defined in Section 509 of the Internal Revenue Code.
An advance ruling or determination of tax-exempt or foundation status by the Internal Revenue Service does not meet the requirements of this paragraph.

(c)“Buyer” means any natural person who is solicited to purchase or who purchases the services of a credit services organization.

(f) “Data Furnisher” is any person or company who furnishes information to a consumer credit reporting agency.

(d)

(g) “Extension of credit” means the right to defer payment of debt or to incur debt and defer its payment, offered or granted primarily for personal, family, or household purposes.

(e)“Consumer reporting agency” means a consumer credit reporting agency subject to the Consumer Credit Reporting Agencies Act, Title 1.6 (commencing with Section 1785.1).

(f)

(h) “Person” includes an individual, corporation, partnership, joint venture, or any business entity.
(i) “Personal information” means a consumer’s social security number, taxpayer identification number, state identification card number, financial account number, credit card number, debit card number, or date of birth. Notwithstanding the foregoing, “personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.

SEC. 3.

 Section 1789.13 of the Civil Code is amended to read:

1789.13.
 A credit services organization and its salespersons, agents, representatives, and independent contractors who sell or attempt to sell the services of a credit services organization shall not do any of the following:
(a) Charge or receive any money or other valuable consideration prior to full and complete performance of the services the credit services organization has agreed to perform for or on behalf of the buyer. consumer.
(b) Fail to perform the agreed services within six months 60 days following the date the buyer consumer signs the contract for those services.
(c) Fail to provide an itemized receipt to the consumer showing each service performed, including each call, letter, and credit check made or sent on behalf of the consumer, and the date of each such service before charging the consumer any fees for the services.

(c)

(d) Charge or receive any money or other valuable consideration for referral of the buyer consumer to a retail seller or other credit grantor who will or may extend credit to the buyer, consumer, if either of the following apply:
(1) The credit that is or will be extended to the buyer consumer (A) is upon substantially the same terms as those available to the general public or (B) is upon substantially the same terms that would have been extended to the buyer consumer without the assistance of the credit services organization.
(2) The money or consideration is paid by the credit grantor or is derived from the buyer’s consumer’s payments to the credit grantor for costs, fees, finance charges, or principal.

(d)

(e) Make, or counsel or advise a buyer consumer to make, a statement that is untrue or misleading and that is known, or that by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer credit reporting agency or to a person who has extended credit to a buyer or to whom a buyer consumer, to a data furnisher, or to any person with whom a consumer is applying for an extension of credit, such as statements concerning a buyer’s consumer’s identification, home address, creditworthiness, credit standing, or credit capacity.

(e)Remove,

(f) Seek to remove, or assist or advise the buyer consumer to remove or seek to remove, adverse information from the buyer’s consumer’s credit record which that is accurate and not obsolete.

(f)

(g) Create, or assist or advise the buyer consumer to create, a new credit record by using a different name, address, social security number, or employee identification number.

(g)

(h) Make or use untrue or misleading representations in the offer or sale of the services of a credit services organization, including either of the following:
(1) Guaranteeing or otherwise stating that the credit services organization is able to delete an adverse credit history, unless the representation clearly discloses, in a manner equally as conspicuous as the guarantee, that this can be done only if the credit history is inaccurate or obsolete and is not claimed to be accurate by the creditor who submitted the information.
(2) Guaranteeing or otherwise stating that the credit services organization is able to obtain an extension of credit, regardless of the buyer’s consumer’s previous credit problems or credit history, unless the representation clearly discloses, in a manner equally as conspicuous as the guarantee, the eligibility requirements for obtaining an extension of credit.

(h)

(i) Engage, directly or indirectly, in an act, practice, or course of business that operates or would operate as a fraud or deception upon a person in connection with the offer or sale of the services of a credit services organization.

(i)

(j) Advertise or cause to be advertised, in any manner, the services of the credit services organization, without being registered with the Department of Justice.

(j)

(k) Fail to maintain an agent for service of process in this state.

(k)

(l) Transfer or assign its certificate of registration.

(l)Submit a buyer’s dispute

(m) Submit any communication to a consumer credit reporting agency agency, creditor, debt collector, or debt buyer without the buyer’s knowledge. consumer’s knowledge and consent.

(m)Use a consumer credit reporting agency’s telephone system or toll-free telephone number to represent the caller as the buyer in submitting a dispute of a buyer or requesting disclosure without prior authorization of the buyer.

(n) Send any communication to a consumer reporting agency, creditor, debt collector, or debt buyer impersonating a consumer and failing to identify when the communication originates from the credit services organization.
(o) Submit a consumer’s dispute to a consumer credit reporting agency, creditor, debt collector, or debt buyer after the account subject to the dispute has been removed.
(p) Use the online electronic portal, electronic email system, or telephone system of a credit reporting agency, creditor, debt collector, or debt buyer to submit a dispute of a consumer or to request disclosure without the prior written authorization of the consumer.

(n)

(q) Directly or indirectly extend credit to a buyer. consumer.

(o)

(r) Refer a buyer consumer to a credit grantor that is related to the credit services organization by a common ownership, management, or control, including a common owner, director, or officer.

(p)

(s) Refer a buyer consumer to a credit grantor for which the credit services organization provides, or arranges for a third party to provide, services related to the extension of credit such as underwriting, billing, payment processing, or debt collection.

(q)

(t) Provide a credit grantor with an assurance that a portion of an extension of credit to a buyer consumer referred by the credit services organization will be repaid, including providing a guaranty, letter of credit, or agreement to acquire a part of the credit grantor’s financial interest in the extension of credit.

(r)

(u) Use a scheme, device, or contrivance to evade the prohibitions contained in this section.
(v) Send any communication, directly or indirectly, on behalf of a consumer without meaningful disclosure of the sender’s identity, including the name, street address, telephone number, facsimile number, and electronic email address of the sender and, if applicable, the name and street address of any parent organization of sender.
(w) Send any communication on behalf of a consumer to any person without providing an exact copy of the communication to the consumer within two days thereafter.
(x) Obtain, or cause to obtain, a notary acknowledgment to any communication sent on behalf of a consumer without complying with the applicable laws regarding notary acknowledgments.

SEC. 4.

 Section 1789.135 is added to the Civil Code, to read:

1789.135.
 To protect against fraud and identity theft, when a credit services organization sends a written communication by facsimile, electronic mail, United States mail, overnight courier, or other means that contains personal information of a consumer, the credit services organization shall redact the personal information to include only the last four digits of the social security number, taxpayer identification number, or state identification number, the last four digits of the financial account number, credit card number, or debit card number, or the month and year of the consumer’s date of birth.

SEC. 5.

 Section 1789.14 of the Civil Code is amended to read:

1789.14.
 Prior to Before the execution of a contract or agreement between the buyer consumer and a credit services organization, the credit services organization shall provide the buyer consumer a statement in writing, containing all the information required by Section 1789.15. The credit services organization shall maintain on file or microfilm for a period of two four years following the completion or termination of the credit services organization agreement with the consumer an exact copy of the statement, personally signed by the buyer, consumer, acknowledging receipt of a copy of the statement.

SEC. 6.

 Section 1789.15 of the Civil Code is amended to read:

1789.15.
 The information statement shall include all of the following:
(a) A complete and detailed description of the services to be performed by the credit services organization for or on behalf of the buyer consumer and the total amount the buyer consumer will have to pay, or become obligated to pay, for the services.
(b) The buyer’s consumer’s right to proceed against the bond under the circumstances and in the manner set forth in Section 1789.18.
(c) The name and address of the surety company which issued the bond.
(d) A complete and accurate statement of the availability of nonprofit credit counseling services.
(e) The following notice: If you have a complaint about the services provided by this credit services organization or the fees charged by this credit services organization, you may submit such a complaint to the California Department of Justice at www.oag.ca.gov/____, or the Attorney General’s office, California Department of Justice, Attn: ____, P.O. Box 944255, Sacramento, CA 94244-2550.
The information statement shall be printed in at least 10-point boldface type and shall include the following statement or any substantially equivalent alternative that is approved by the Department of Justice: statement:

“CONSUMER CREDIT FILE RIGHTS UNDER STATE AND FEDERAL LAW

You have a right to obtain a free copy of your credit file from a consumer credit reporting agency. You may be charged a reasonable fee not exceeding eight dollars ($8). There is no fee, however, if you have been turned down for report from the credit reporting agencies TransUnion, Equifax, and Experian. You may obtain this free copy of your credit report one time per year by visiting www.AnnualCreditReport.com. You will be able to view your credit report, dispute alleged inaccuracies therein, and obtain additional information at no fee. If you were denied credit, employment, insurance, or a rental dwelling because of information in your credit report within the preceding 60 days. The If requested, the consumer credit reporting agency must provide someone to help you interpret the information in your credit file.
You have a right to dispute inaccurate information by contacting the consumer credit reporting agency directly. However, neither you nor any credit repair company or credit services organization has the right to have accurate, current, and verifiable information removed from your credit report. Under the Federal Fair Credit Reporting Act, the consumer credit reporting agency must remove accurate, negative information from your report only if it is over seven years old. Bankruptcy information can be reported for 10 years.
If you have notified a credit reporting agency in writing that you dispute the accuracy of information in your credit file, the consumer credit reporting agency must then reinvestigate and modify or remove inaccurate information. The consumer credit reporting agency may not charge a fee for this service. Any pertinent information and copies of all documents you have concerning an error should be given to the consumer credit reporting agency.
If reinvestigation does not resolve the dispute to your satisfaction, you may send a brief statement to the consumer credit reporting agency to keep in your file, explaining why you think the record is inaccurate. The consumer credit reporting agency must include your statement about disputed information in any report it issues about you.
You have a right to cancel the contract with the credit services organization for any reason within five working days from the date you signed it. If for any reason you do cancel the contract during this time, you do not owe any money.
You have a right to sue a credit services organization if it misleads you.”

SEC. 7.

 Section 1789.16 of the Civil Code is amended to read:

1789.16.
 (a) A credit services organization shall not provide any service to a buyer consumer except pursuant to a written contract that complies with this section. Every contract between the buyer consumer and a credit services organization for the purchase of the services of the credit services organization shall identify the street address, facsimile number, and electronic mail address of the credit services organization, shall be in writing, shall be dated, shall be signed by the buyer, consumer, and shall include all of the following:
(1) A conspicuous statement in size equal to at least 10-point boldface type, in immediate proximity to the space reserved for the signature of the buyer, as follows:

“You, the buyer, consumer, may cancel this contract at any time prior to midnight of the fifth day after the date of the transaction. See the attached notice of cancellation form for an explanation of this right.”

(2) The terms and conditions of payment, including the total of all payments to be made by the buyer, consumer, whether to the credit services organization or to some other person.
(3) A full and detailed description of the services to be performed by the credit services organization for the buyer, consumer, including all guarantees and all promises of full or partial refunds, and the estimated date by which the services are to be performed, or the estimated length of time for performing the services not to exceed six months the results to be achieved by the credit services organization, a list of the adverse information appearing on the consumer’s credit report, a list of those accounts that the credit services organization will seek to delete or modify and, if applicable, a precise description of each modification sought and the anticipated payment required by the consumer to achieve each account deletion or modification, all guarantees and all promises of full or partial refunds, and the estimated date by which the services are to be performed, or the estimated length of time for performing the services, not to exceed 60 days, or a shorter period consistent with the purposes of this title as may be prescribed by the Department of Justice.
(4) The credit services organization’s principal business address and the name and address of its agent, other than the Secretary of State, in the State of California, authorized to receive service of process.
(b) The contract shall be accompanied by a completed form in duplicate, captioned “Notice of Cancellation,” which shall be attached to the contract and easily detachable, and which shall contain in type of at least 10-point the following statement written in the same language as used in the contract:

“Notice of Cancellation”

“You may cancel this contract, without any penalty or obligation, within five days from the date the contract is signed.
“If you cancel, any payment made by you under this contract must be returned within 15 days following receipt by the seller of your cancellation notice.
“To cancel this contract, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, to
_____ (name of seller) _____ at
_____ (address of seller)(place of business) _____
not later than midnight (date).
“I hereby cancel this transaction.”
(date) _____ (purchaser’s signature) _____
A copy of the fully completed contract and all other documents the credit services organization requires the buyer to sign shall be given to the buyer consumer at the time they are signed.

SEC. 8.

 Section 1789.19 of the Civil Code is amended to read:

1789.19.
 (a) Any waiver by a buyer consumer of the provisions of this title shall be deemed contrary to public policy and shall be void and unenforceable. Any attempt by a credit services organization to have a buyer consumer waive rights given by this title shall constitute a violation of this title.
(b) In any proceeding involving this title, the burden of proving an exemption or an exception from a definition is upon the person claiming it.

SEC. 9.

 Section 1789.21 of the Civil Code is amended to read:

1789.21.
 (a) Any buyer consumer injured by a violation of this title or by the credit services organization’s breach of a contract subject to this title may bring any action for recovery of damages, or for injunctive relief, or both. Judgment shall be entered for actual damages, but in no case less than the amount paid by the buyer consumer to the credit services organization, plus reasonable attorney’s fees and costs. An award, if the trial court deems it proper, may be entered for punitive damages.
(b) Any credit services organization that willfully and knowingly violates this title with respect to any consumer, in addition to any damages awarded pursuant to subdivision (a), shall also be liable to the consumer, in an individual action, for a civil penalty of not less than one hundred dollars ($100) and not greater than one thousand dollars ($1,000), to be determined by the court.
(c) Any credit services organization that willfully and knowingly violates subdivision (m), (n), (o), (p), (u), (v), or (x) of Section 1789.13, in addition to any damages awarded pursuant to subdivision (d), shall be liable to an adversely affected consumer reporting agency, creditor, debt collector, or debt buyer, in an individual action, for a civil penalty of not less than one hundred dollars ($100) and not greater than one thousand dollars ($1,000), to be determined by the court.

(b)

(d) Any person, including, but not limited to, a consumer credit reporting agency, as defined in subdivision (d) of Section 1785.3, and any consumer of, or user of, a consumer credit report under the Consumer Credit Reporting Agencies Act (Title 1.6 (commencing with Section 1785.1)), and any furnisher of credit information under the Consumer Credit Reporting Agencies Act, may bring an action for the recovery of damages or for injunctive relief, or both, for a violation of this title. Any person bringing such an action who prevails in the action shall be entitled to reasonable attorney’s fees and costs.

SEC. 10.

 Section 1789.25 of the Civil Code is amended to read:

1789.25.
 (a) Every credit services organization shall file a registration application with, and receive a certificate of registration from, the Department of Justice before conducting business in this state. The Department of Justice shall not issue a certificate of registration until the bond required by Section 1789.18 has been filed with the office of the Secretary of State and the department establishes that the organization seeking a certificate satisfies the requirements of subdivision (f). The application shall be accompanied by a registration fee of one hundred dollars ($100). The registration application shall contain all of the following information:
(1) The name and address where business is actually conducted of the credit services organization.
(2) The names, addresses, and driver’s license numbers of any and all persons who directly or indirectly own or control 10 percent or more of the outstanding shares of stock in the credit services organization.
(3) Either of the following:
(A) A full and complete disclosure of any litigation commenced against the credit services organization or any resolved or unresolved complaint that relates to the operation of the credit services organization and that is filed with the Attorney General or any other governmental authority of this state, any other state, or the federal government. With respect to each resolved complaint identified by the disclosure, the disclosure shall include a brief description of the resolution.
(B) An acknowledged declaration under penalty of perjury stating that no litigation has been commenced and no unresolved complaint relating to the operation of the organization has been filed with the Attorney General or any other governmental authority of this state, any other state, or the federal government.
(4) Other information that the Department of Justice requires, either at the time of application or thereafter.
(b) The Department of Justice may conduct an investigation to verify the accuracy of the registration application. If the application involves investigation outside this state, the applicant credit services organization may be required by the Department of Justice to advance sufficient funds to pay the actual expenses of the investigation. Any nonresident applying for registration under this section shall designate and maintain a resident of this state as the applicant’s agent for the purpose of receipt of service of process.
(c) Each credit services organization shall notify the Department of Justice in writing within 30 days after the date of a change in the information required by subdivision (a), except that 30 days’ advance notice and approval by the Department of Justice shall be required before changing the corporate name or address, or persons owning more than 10 percent of the shares of stock in the organization. Each credit services organization registering under this section may use no more than one fictitious or trade name and shall maintain a copy of the registration application in its files. The organization shall allow a buyer to inspect the registration application upon request.
(d) A certificate of registration issued pursuant to this section shall expire annually on the last day of December but may be renewed by filing a renewal application accompanied by a fee not to exceed the Department of Justice’s costs of administration. in an amount to be determined annually by the Department of Justice as necessary to satisfy its costs in complying with its duties under this title.
(e) The credit services organization shall attach to the registration statement a copy of the contract or contracts which the credit services organization intends to execute with its customers and a copy of the required bond.
(f) The Department of Justice shall not issue a certificate of registration under this title to any person who has engaged in, or proposes to engage in, any activity that is in violation of Section 1789.13, any law prohibiting the use of untrue or misleading statements, or any law related to the extension of credit to persons for personal, family, or household purposes.
(g) The Attorney General shall maintain on a publicly available internet website a list of the credit services organizations that are registered in this state. The Attorney General shall list any complaints submitted pursuant to subdivision (e) of Section 1789.15 regarding each credit services organization.