BILL REQ. #:  S-3385.2 

Read first time 01/11/10.   Referred to Committee on Judiciary.

     AN ACT Relating to prohibited practices of collection agencies; and reenacting and amending RCW 19.16.250.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 19.16.250 and 2001 c 217 s 5 and 2001 c 47 s 2 are each reenacted and amended to read as follows:
     (1) No licensee or employee of a licensee shall:
     (((1))) (a) Directly or indirectly aid or abet any unlicensed person to engage in business as a collection agency in this state or receive compensation from such unlicensed person: PROVIDED, That nothing in this chapter shall prevent a licensee from accepting, as forwardee, claims for collection from a collection agency or attorney whose place of business is outside the state.
     (((2))) (b) Collect or attempt to collect a claim by the use of any means contrary to the postal laws and regulations of the United States postal department.
     (((3))) (c) Publish or post or cause to be published or posted, any list of debtors commonly known as "bad debt lists" or threaten to do so. For purposes of this chapter, a "bad debt list" means any list of natural persons alleged to fail to honor their lawful debts. However, nothing herein shall be construed to prohibit a licensee from communicating to its customers or clients by means of a coded list, the existence of a check dishonored because of insufficient funds, not sufficient funds or closed account by the financial institution servicing the debtor's checking account: PROVIDED, That the debtor's identity is not readily apparent: PROVIDED FURTHER, That the licensee complies with the requirements of (i)(v) of this subsection (((9)(e) of this section)).
     (((4))) (d) Have in his possession or make use of any badge, use a uniform of any law enforcement agency or any simulation thereof, or make any statements which might be construed as indicating an official connection with any federal, state, county, or city law enforcement agency, or any other governmental agency, while engaged in collection agency business.
     (((5))) (e) Perform any act or acts, either directly or indirectly, constituting the practice of law.
     (((6))) (f) Advertise for sale or threaten to advertise for sale any claim as a means of endeavoring to enforce payment thereof or agreeing to do so for the purpose of soliciting claims, except where the licensee has acquired claims as an assignee for the benefit of creditors or where the licensee is acting under court order.
     (((7))) (g) Use any name while engaged in the making of a demand for any claim other than the name set forth on his or its current license issued hereunder.
     (((8))) (h) Give or send to any debtor or cause to be given or sent to any debtor, any notice, letter, message, or form which represents or implies that a claim exists unless it shall indicate in clear and legible type:
     (((a))) (i) The name of the licensee and the city, street, and number at which he is licensed to do business;
     (((b))) (ii) The name of the original creditor to whom the debtor owed the claim if such name is known to the licensee or employee: PROVIDED, That upon written request of the debtor, the licensee shall make a reasonable effort to obtain the name of such person and provide this name to the debtor;
     (((c))) (iii) If the notice, letter, message, or form is the first notice to the debtor ((or if the licensee is attempting to collect a different amount than indicated in his or its first notice to the debtor)), an itemization of the claim asserted must be made including:
     (((i))) (A) Amount owing on the original obligation at the time it was received by the licensee for collection or by assignment;
     (((ii))) (B) Interest or service charge, collection costs, or late payment charges, if any, added to the original obligation by the original creditor, customer or assignor before it was received by the licensee for collection, if such information is known by the licensee or employee: PROVIDED, That upon written request of the debtor, the licensee shall make a reasonable effort to obtain information on such items and provide this information to the debtor;
     (((iii))) (C) Interest or service charge, if any, added by the licensee or customer or assignor after the obligation was received by the licensee for collection;
     (((iv))) (D) Collection costs, if any, that the licensee is attempting to collect;
     (((v))) (E) Attorneys' fees, if any, that the licensee is attempting to collect on his or its behalf or on the behalf of a customer or assignor;
     (((vi))) (F) Any other charge or fee that the licensee is attempting to collect on his or its own behalf or on the behalf of a customer or assignor;
     (iv) If the notice, letter, message, or form is a subsequent notice to the debtor and the licensee is attempting to collect a different amount than indicated in the first notice, an itemization of the portions of the claim that are different must be made: PROVIDED, That if the only difference in the amounts is the addition of interest, no itemization is required: AND PROVIDED FURTHER, That an itemization need be provided only in the subsequent notice that first indicates a different amount, and not in notices thereafter unless further changes occur in the amounts other than interest;
     (v) If the notice, letter, message, or form concerns a judgment obtained against the debtor, no itemization of the amounts is required.
     (((9))) (i) Communicate or threaten to communicate, the existence of a claim to a person other than one who might be reasonably expected to be liable on the claim in any manner other than through proper legal action, process, or proceedings except under the following conditions:
     (((a))) (i) A licensee or employee of a licensee may inform a credit reporting bureau of the existence of a claim: PROVIDED, That if the licensee or employee of a licensee reports a claim to a credit reporting bureau, the licensee shall upon receipt of written notice from the debtor that any part of the claim is disputed, ((forward a copy of such written notice to)) notify the credit reporting bureau of the dispute and create a record of the fact of the notification and when the notification was provided;
     (((b))) (ii) A licensee or employee in collecting or attempting to collect a claim may communicate the existence of a claim to a debtor's employer if the claim has been reduced to a judgment;
     (((c))) (iii) A licensee or employee in collecting or attempting to collect a claim that has not been reduced to judgment, may communicate the existence of a claim to a debtor's employer if:
     (((i))) (A) The licensee or employee has notified or attempted to notify the debtor in writing at his last known address or place of employment concerning the claim and the debtor after a reasonable time has failed to pay the claim or has failed to agree to make payments on the claim in a manner acceptable to the licensee, and
     (((ii))) (B) The debtor has not in writing to the licensee disputed any part of the claim: PROVIDED, That the licensee or employee may only communicate the existence of a claim which has not been reduced to judgment to the debtor's employer once unless the debtor's employer has agreed to additional communications((.));
     (((d))) (iv) A licensee may for the purpose of locating the debtor or locating assets of the debtor communicate the existence of a claim to any person who might reasonably be expected to have knowledge of the whereabouts of a debtor or the location of assets of the debtor if the claim is reduced to judgment, or if not reduced to judgment, when:
     (((i))) (A) The licensee or employee has notified or attempted to notify the debtor in writing at his last known address or last known place of employment concerning the claim and the debtor after a reasonable time has failed to pay the claim or has failed to agree to make payments on the claim in a manner acceptable to the licensee, and
     (((ii))) (B) The debtor has not in writing disputed any part of the claim((.));
     (((e))) (v) A licensee may communicate the existence of a claim to its customers or clients if the claim is reduced to judgment, or if not reduced to judgment, when:
     (((i))) (A) The licensee has notified or attempted to notify the debtor in writing at his last known address or last known place of employment concerning the claim and the debtor after a reasonable time has failed to pay the claim or has failed to agree to make payments on the claim in a manner acceptable to the licensee, and
     (((ii))) (B) The debtor has not in writing disputed any part of the claim.
     (((10))) (j) Falsely threaten the debtor with impairment of his credit rating if a claim is not paid.
     (((11))) (k) Communicate with the debtor after notification in writing from an attorney representing such debtor that all further communications relative to a claim should be addressed to the attorney: PROVIDED, That if a licensee requests in writing information from an attorney regarding such claim and the attorney does not respond within a reasonable time, the licensee may communicate directly with the debtor until he or it again receives notification in writing that an attorney is representing the debtor.
     (((12))) (l) Communicate with a debtor or anyone else in such a manner as to harass, intimidate, threaten, or embarrass a debtor, including but not limited to communication at an unreasonable hour, with unreasonable frequency, by threats of force or violence, by threats of criminal prosecution, and by use of offensive language. A communication shall be presumed to have been made for the purposes of harassment if:
     (((a))) (i) It is other than a written communication sent through the United States postal service, and it is made with a debtor or spouse in any form, manner, or place, more than three times in a single week, unless the licensee is responding to a communication from the debtor or spouse;
     (((b))) (ii) It is made with a debtor at his or her place of employment more than one time in a single week;
     (((c))) (iii) It is a telephone communication made with the debtor or spouse at his or her place of residence between the hours of 9:00 p.m. and 7:30 a.m.
     (((13))) (m) Communicate with the debtor through use of forms or instruments that simulate the form or appearance of judicial process, the form or appearance of government documents, or the simulation of a form or appearance of a telegraphic or emergency message.
     (((14))) (n) Communicate with the debtor and represent or imply that the existing obligation of the debtor may be or has been increased by the addition of attorney fees, investigation fees, service fees, or any other fees or charges when in fact such fees or charges may not legally be added to the existing obligation of such debtor.
     (((15))) (o) Threaten to take any action against the debtor which the licensee cannot legally take at the time the threat is made.
     (((16) Send)) (p) Cause charges to be incurred for any telegram or ((make)) any telephone call((s)) to a debtor or concerning a debt or for the purpose of demanding payment of a claim or seeking information about a debtor, ((for which the charges are payable by the addressee or by the person to whom the call is made)) by concealment of the true purpose of the communication. This subsection does not prohibit a debt collector from communicating with a debtor by way of a debtor's cellular telephone or other wireless device.
     (((17))) (q) In any manner convey the impression that the licensee is vouched for, bonded to or by, or is an instrumentality of the state of Washington or any agency or department thereof.
     (((18))) (r) Collect or attempt to collect in addition to the principal amount of a claim any sum other than allowable interest, collection costs or handling fees expressly authorized by statute, and, in the case of suit, attorney's fees and taxable court costs. A licensee may collect or attempt to collect collection costs and fees, including contingent collection fees, as authorized by a written agreement or contract, between the licensee's client and the debtor, in the collection of a commercial claim. The amount charged to the debtor for collection services shall not exceed thirty-five percent of the commercial claim.
     (((19))) (s) Procure from a debtor or collect or attempt to collect on any written note, contract, stipulation, promise or acknowledgment under which a debtor may be required to pay any sum other than principal, allowable interest, except as noted in (r) of this subsection (((18) of this section)), and, in the case of suit, attorney's fees and taxable court costs.
     (((20))) (t)(i) Upon notification by a debtor that the debtor disputes all debts arising from a series of dishonored checks, automated clearinghouse transactions on a demand deposit account, or other preprinted written instruments, initiate oral contact with a debtor more than one time in an attempt to collect from the debtor debts arising from the identified series of dishonored checks, automated clearinghouse transactions on a demand deposit account, or other preprinted written instruments when: (((a))) (A) Within the previous one hundred eighty days, in response to the licensee's attempt to collect the initial debt assigned to the licensee and arising from the identified series of dishonored checks, automated clearinghouse transactions on a demand deposit account, or other preprinted written instruments, the debtor in writing notified the licensee that the debtor's checkbook or other series of preprinted written instruments was stolen or fraudulently created; (((b))) (B) the licensee has received from the debtor a certified copy of a police report referencing the theft or fraudulent creation of the checkbook, automated clearinghouse transactions on a demand deposit account, or series of preprinted written instruments; (((c))) (C) in the written notification to the licensee or in the police report, the debtor identified the financial institution where the account was maintained, the account number, the magnetic ink character recognition number, the full bank routing and transit number, and the check numbers of the stolen checks, automated clearinghouse transactions on a demand deposit account, or other preprinted written instruments, which check numbers included the number of the check that is the subject of the licensee's collection efforts; (((d))) (D) the debtor provides, or within the previous one hundred eighty days provided, to the licensee a legible copy of a government-issued photo identification, which contains the debtor's signature and which was issued prior to the date of the theft or fraud identified in the police report; and (((e))) (E) the debtor advised the licensee that the subject debt is disputed because the identified check, automated clearinghouse transaction on a demand deposit account, or other preprinted written instrument underlying the debt is a stolen or fraudulently created check or instrument.
     (ii) The licensee is not in violation of this subsection if the licensee initiates oral contact with the debtor more than one time in an attempt to collect debts arising from the identified series of dishonored checks, automated clearinghouse transactions on a demand deposit account, or other preprinted written instruments when: (((i))) (A) The licensee acted in good faith and relied on their established practices and procedures for batching, recording, or packeting debtor accounts, and the licensee inadvertently initiates oral contact with the debtor in an attempt to collect debts in the identified series subsequent to the initial debt assigned to the licensee; (((ii))) (B) the licensee is following up on collection of a debt assigned to the licensee, and the debtor has previously requested more information from the licensee regarding the subject debt; (((iii))) (C) the debtor has notified the licensee that the debtor disputes only some, but not all the debts arising from the identified series of dishonored checks, automated clearinghouse transactions on a demand deposit account, or other preprinted written instruments, in which case the licensee shall be allowed to initiate oral contact with the debtor one time for each debt arising from the series of identified checks, automated clearinghouse transactions on a demand deposit account, or written instruments and initiate additional oral contact for those debts that the debtor acknowledges do not arise from stolen or fraudulently created checks or written instruments; (((iv))) (D) the oral contact is in the context of a judicial, administrative, arbitration, mediation, or similar proceeding; or (((v))) (E) the oral contact is made for the purpose of investigating, confirming, or authenticating the information received from the debtor, to provide additional information to the debtor, or to request additional information from the debtor needed by the licensee to accurately record the debtor's information in the licensee's records.
     (2) For purposes of this section, "communicate" or "communication" means the following:
     (a) Any contact with a debtor or spouse initiated by the licensee, in person, by telephone, or in writing, including e-mails, text messages, and other electronic writing, regarding the collection of a claim, but does not include any of the following:
     (i) Contact while a debtor is physically present in the licensee's place of business;
     (ii) A telephone call which is not answered by a live person and in which no message, other than a caller ID, is left; unless the call is made in violation of subsection (1)(l)(iii) of this section;
     (iii) A letter to the debtor that includes initial disclosures intended to comply with the federal fair debt collection practices act or that is intended to comply with any other federal, state, or local law or regulation;
     (iv) Any pleading or other document or notice served or provided in connection with a legal proceeding, mediation, or arbitration;
     (v) Contact responding to a communication from a debtor or spouse; or
     (vi) Contact with an attorney for a debtor or spouse.
     (b) A telephone contact initiated by a debtor where substantive discussion of the debt with the licensee occurs: PROVIDED That, the contact does not qualify as a communication at the place of employment of the debtor, nor as a communication in excess of the third communication in a week: AND PROVIDED FURTHER, That a telephone contact initiated by a debtor which results in a request for an employee of the licensee to call the debtor back does not qualify as a communication, whether the message is left with a recording device or with a live person.
     (3) For purposes of subsection (1)(l)(iii) of this section, a licensee may presume that a call to a cellular telephone is received in the local time zone to which the area code of the number called is assigned for landline numbers, unless the licensee reasonably believes the cellular telephone is located in a different time zone. If the area code is not assigned to landlines in any specific geographic area, such as with toll-free telephone numbers, a licensee may presume that a call to a cellular telephone is received in the local time zone of the debtor's last known place of residence, unless the licensee reasonably believes the cellular telephone is located in a different time zone.
     (4) For purposes of this section, a call to a number that the licensee reasonably believes is the debtor's cellular telephone does not constitute a communication with a debtor at the debtor's place of employment.
     (5) For purposes of this section, "week" means a series of seven consecutive days beginning on a Sunday.