PRINTER'S NO. 2278
No. 1719 Session of 2007
INTRODUCED BY GERBER, DALLY, BELFANTI, BEYER, BIANCUCCI,
BRENNAN, CAPPELLI, CURRY, DeLUCA, EVERETT, FRANKEL, GEIST,
GEORGE, GINGRICH, GRUCELA, KIRKLAND, KORTZ, KULA, LONGIETTI,
MANN, McGEEHAN, MENSCH, MILLARD, MILNE, MOUL, MOYER, MUNDY,
MURT, MYERS, PALLONE, SABATINA, SANTONI, SAYLOR, SIPTROTH,
SOLOBAY, VULAKOVICH AND YUDICHAK, JULY 9, 2007
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JULY 9, 2007
AN ACT
1 Amending the act of March 28, 2000 (P.L.23, No.7), entitled "An
2 act establishing the Fair Credit Extension Uniformity Act;
3 and providing for debt collection trade practices and
4 penalties," further providing for the definitions of "debt"
5 and "debt collector"; providing for the definitions of
6 "municipal claim," "municipal creditor," "municipality,"
7 "tax" and "tax claim"; and further providing for unfair or
8 deceptive acts or practices.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. The definitions of "debt" and "debt collector" in
12 section 3 of the act of March 28, 2000 (P.L.23, No.7), known as
13 the Fair Credit Extension Uniformity Act, are amended and the
14 section is amended by adding definitions to read:
15 Section 3. Definitions.
16 The following words and phrases when used in this act shall
17 have the meanings given to them in this section unless the
18 context clearly indicates otherwise:
19 * * *
1 "Debt." An actual or alleged past due obligation, claim,
2 demand, note or other similar liability of a consumer to pay
3 money, arising out of a single account as a result of a
4 purchase, lease or loan of goods, services or real or personal
5 property for personal, family or household purposes or as a
6 result of a loan of money or extension of credit which is
7 obtained primarily for personal, family or household purposes,
8 provided, however, that money which is owed or alleged to be
9 owed as a result of a loan secured by a purchase money mortgage
10 on real estate shall not be included within the definition of
11 debt. [The] Except as specifically provided in this act to the
12 contrary, the term also includes any amount owed as a tax to any
13 political subdivision of this Commonwealth. Tax includes an
14 assessment, any interest, penalty, fee or other amount permitted
15 by law to be collected. Debt does not include any such amount
16 owed to the United States or the Commonwealth.
17 "Debt collector."
18 (1) A person not a creditor conducting business within
19 this Commonwealth, acting on behalf of a creditor, engaging
20 or aiding directly or indirectly in collecting a debt owed or
21 alleged to be owed a creditor or assignee of a creditor.
22 (2) The term does not include:
23 (i) Any officer or employee of a creditor while, in
24 the name of the creditor, collecting debts for such
25 creditor.
26 (ii) A person while attempting to collect a debt on
27 behalf of a creditor, both of whom are related by common
28 ownership or affiliated by corporate control, if the
29 person acting as a debt collector does so only for
30 creditors to whom it is so related or affiliated and if
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1 the principal business of the person is not the
2 collection of debts.
3 (iii) A person while collecting or attempting to
4 collect any debt owed or due or asserted to be owed or
5 due to another to the extent such activity:
6 (A) is incidental to a bona fide fiduciary
7 obligation or a bona fide escrow arrangement;
8 (B) concerns a debt which was originated by such
9 person;
10 (C) concerns a debt which was not in default at
11 the time it was obtained by such person; or
12 (D) concerns a debt obtained by such person as a
13 secured party in a commercial credit transaction
14 involving the creditor.
15 Persons included within this subparagraph shall be
16 considered creditors and not debt collectors for purposes
17 of this act.
18 (iv) A person while serving or attempting to serve
19 legal process on another person in connection with the
20 judicial enforcement of a debt.
21 (v) A person who is an elected or appointed official
22 of any political subdivision of this Commonwealth, who
23 collects or attempts to collect a tax or assessment owed
24 to the political subdivision which employs the person,
25 while that person is acting within the scope of his
26 elected or appointed position or employment.
27 (3) The term does include:
28 (i) A creditor who, in the process of collecting his
29 or her own debt, uses a name other than his or her own
30 which would indicate that a third person is collecting or
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1 attempting to collect the debt.
2 (ii) An attorney, whenever such attorney attempts to
3 collect a debt, as herein defined, except in connection
4 with the filing or service of pleadings or discovery or
5 the prosecution of a lawsuit to reduce a debt to
6 judgment.
7 (iii) A person who sells or offers to sell forms
8 represented to be a collection system, device or scheme
9 which is intended or designed to collect debts.
10 (iv) A person, other than an elected or appointed
11 official of any political subdivision of this
12 Commonwealth, who collects or attempts to collect a tax
13 or assessment owed to any political subdivision of this
14 Commonwealth.
15 (4) If a debt collector is also a municipal creditor,
16 any exception in this act applicable to municipal creditors
17 shall apply to the debt collector.
18 * * *
19 "Municipal claim." The term shall have the same meaning as
20 given to it in section 1 of the act of May 16, 1923 (P.L.207,
21 No.153), referred to as the Municipal Claim and Tax Lien Law.
22 "Municipal creditor." A municipality to whom a debt, tax,
23 tax claim or municipal claim is owed or alleged to be owed. The
24 term also includes an employee of the municipality and any
25 agent, attorney, debt collector, third party collector, servant
26 or one of their employees retained by the municipality to
27 collect the debt, tax, tax claim or municipal claim.
28 "Municipality." A county, city, borough, incorporated town,
29 township, school district or a body politic and corporate
30 created as a municipal authority, pursuant to law, and any
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1 assignees of those entities.
2 * * *
3 "Tax." Any tax levied and assessed in any county, city,
4 borough, incorporated town, township, school, bridge, road or
5 poor taxes, together with and including all penalties, interest,
6 costs, charges, expenses and fees, including reasonable attorney
7 fees allowed by the act of May 16, 1923 (P.L.207, No.153),
8 referred to as the Municipal Claim and Tax Lien Law or any other
9 law.
10 "Tax claim." A claim filed to recover taxes.
11 Section 2. Section 4 of the act is amended to read:
12 Section 4. Unfair or deceptive acts or practices.
13 (a) By debt collectors.--[It]
14 (1) Except as provided in paragraph (2), it shall
15 constitute an unfair or deceptive debt collection act or
16 practice under this act if a debt collector violates any of
17 the provisions of the Fair Debt Collection Practices Act
18 (Public Law 95-109, 15 U.S.C. § 1692 et seq.).
19 (2) It shall not constitute an unfair or deceptive debt
20 collection act or practice under this act for a municipal
21 creditor to disclose, publish or communicate to any third
22 parties information concerning municipal debt, taxes, tax
23 claims or municipal claims without the consent of the debtor.
24 The preparation, disclosure, publication or communication of
25 public records of municipal debt, taxes, tax claims or
26 municipal claims by a municipal creditor shall also be
27 permitted under this act without the consent of the debtor.
28 (b) By creditors.--With respect to debt collection
29 activities of creditors in this Commonwealth, it shall
30 constitute an unfair or deceptive debt collection act or
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1 practice under this act if a creditor violates any of the
2 following provisions:
3 (1) Any creditor communicating with any person other
4 than the consumer for the purpose of acquiring location
5 information about the consumer shall:
6 (i) identify himself, state that he is confirming or
7 correcting location information concerning the consumer,
8 and, only if expressly requested, identify his employer;
9 (ii) except for a municipal creditor, not state that
10 such consumer owes any debt;
11 (iii) except for a municipal creditor, not
12 communicate with any such person more than once unless
13 requested to do so by such person or unless the creditor
14 reasonably believes that the earlier response of such
15 person is erroneous or incomplete and that such person
16 now has correct or complete location information;
17 (iv) not communicate by postcard;
18 (v) except for a municipal creditor, not use any
19 language or symbol on any envelope or in the contents of
20 any communication effected by the mails or telegram that
21 indicates that the communication relates to the
22 collection of a debt; and
23 (vi) after the creditor knows the consumer is
24 represented by an attorney with regard to the subject
25 debt and has knowledge of or can readily ascertain such
26 attorney's name and address, not communicate with any
27 person other than that attorney unless the attorney fails
28 to respond within a reasonable period of time to
29 communication from the creditor.
30 (2) Without the prior consent of the consumer given
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1 directly to the creditor or the express permission of a court
2 of competent jurisdiction, a creditor may not communicate
3 with a consumer in connection with the collection of any
4 debt:
5 (i) at any unusual time or place or a time or place
6 known or which should be known to be inconvenient to the
7 consumer. In the absence of knowledge of circumstances to
8 the contrary, a creditor shall assume that the convenient
9 time for communicating with a consumer is after 8 a.m.
10 and before 9 p.m. local time at the consumer's location;
11 (ii) if the creditor knows the consumer is
12 represented by an attorney with respect to such debt and
13 has knowledge of or can readily ascertain such attorney's
14 name and address unless the attorney fails to respond
15 within a reasonable period of time to a communication
16 from the creditor or unless the attorney consents to
17 direct communication with the consumer; or
18 (iii) at the consumer's place of employment if the
19 creditor knows or has reason to know that the consumer's
20 employer prohibits the consumer from receiving such
21 communication.
22 (3) Except for a municipal creditor and except as
23 provided in paragraph (1), without the prior consent of the
24 consumer given directly to the creditor or the express
25 permission of a court of competent jurisdiction or as
26 reasonably necessary to effectuate a postjudgment judicial
27 remedy, a creditor may not communicate, in connection with
28 the collection of any debt, with any person other than the
29 consumer, his attorney, a consumer reporting agency if
30 otherwise permitted by law, a debt collector, the attorney of
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1 the debt collector or the attorney of the creditor.
2 (4) A creditor may not engage in any conduct the natural
3 consequence of which is to harass, oppress or abuse any
4 person in connection with the collection of a debt. Without
5 limiting the general application of the foregoing, the
6 following conduct is a violation of this paragraph:
7 (i) The use or threat of use of violence or other
8 criminal means to harm the physical person, reputation or
9 property of any person.
10 (ii) The use of obscene or profane language or
11 language the natural consequence of which is to abuse the
12 hearer or reader.
13 (iii) The publication of a list of consumers who
14 allegedly refuse to pay debts, except to a consumer
15 reporting agency [or], to persons meeting the
16 requirements of section 1681a(f) or 1681b(a)(3) of the
17 Fair Credit Reporting Act (Public Law 91-508, 15 U.S.C. §
18 1681 et seq.) or by a municipal creditor.
19 (iv) The advertisement for sale of any debt to
20 coerce payment of the debt, except by a municipal
21 creditor.
22 (v) Causing a telephone to ring or engaging any
23 person in telephone conversation repeatedly or
24 continuously with intent to annoy, abuse or harass any
25 person at the called number.
26 (vi) Except as provided in paragraph (1), the
27 placement of telephone calls without meaningful
28 disclosure of the caller's identity.
29 (5) A creditor may not use any false, deceptive or
30 misleading representation or means in connection with the
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1 collection of any debt. Without limiting the general
2 application of the foregoing, the following conduct is a
3 violation of this paragraph:
4 (i) The false representation or implication that the
5 creditor is vouched for, bonded by or affiliated with the
6 United States or any state, including the use of any
7 badge, uniform or facsimile thereof.
8 (ii) The false representation of the character,
9 amount or legal status of any debt.
10 (iii) The false representation or implication that
11 any individual is an attorney or that any communication
12 is from an attorney.
13 (iv) The representation or implication that
14 nonpayment of any debt will result in the arrest or
15 imprisonment of any person or the seizure, attachment or
16 sale of any property of any person unless such action is
17 lawful and the creditor intends to take such action.
18 (v) The threat to take any action that cannot
19 legally be taken or that is not intended to be taken.
20 (vi) The false representation or implication that a
21 sale, referral or other transfer of any interest in a
22 debt shall cause the consumer to lose any claim or
23 defense to payment of the debt or become subject to any
24 practice prohibited by this act.
25 (vii) The false representation or implication that
26 the consumer committed any crime or other conduct in
27 order to disgrace the consumer.
28 (viii) Communicating or threatening to communicate
29 to any person credit information which is known or which
30 should be known to be false, including the failure to
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1 communicate that a debt is disputed.
2 (ix) The use or distribution of any written
3 communication which simulates or is falsely represented
4 to be a document authorized, issued or approved by any
5 court, official or agency of the United States or any
6 state or which creates a false impression as to its
7 source, authorization or approval.
8 (x) The use of any false representation or deceptive
9 means to collect or attempt to collect any debt or to
10 obtain information concerning a consumer.
11 (xi) The false representation or implication that
12 accounts have been turned over to innocent purchasers for
13 value.
14 (xii) The false representation or implication that
15 documents are legal process.
16 (xiii) The false representation or implication that
17 documents are not legal process forms or do not require
18 action by the consumer.
19 (6) A creditor may not use unfair or unconscionable
20 means to collect or attempt to collect any debt. Without
21 limiting the general application of the foregoing, the
22 following conduct is a violation of this paragraph:
23 (i) The collection of any amount, including any
24 interest, fee, charge or expense incidental to the
25 principal obligation, unless such amount is expressly
26 authorized by the agreement creating the debt or
27 permitted by law.
28 (ii) The acceptance by a creditor from any person of
29 a check or other payment instrument postdated by more
30 than five days unless such person will be notified in
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1 writing of the creditor's intent to deposit such check or
2 instrument not more than ten nor less than three business
3 days prior to such deposit.
4 (iii) The solicitation by a creditor of any
5 postdated check or other postdated payment instrument for
6 the purpose of threatening or instituting criminal
7 prosecution.
8 (iv) Depositing or threatening to deposit any
9 postdated check or other postdated payment instrument
10 prior to the date on such check or instrument.
11 (v) Causing charges to be made to any person for
12 communications by concealment of the true purpose of the
13 communication. Such charges include, but are not limited
14 to, collect telephone calls and telegram fees.
15 (vi) Taking or threatening to take any nonjudicial
16 action to effect dispossession or disablement of property
17 if:
18 (A) there is no present right to possession of
19 the property claimed as collateral through an
20 enforceable security interest;
21 (B) there is no present intention to take
22 possession of the property; or
23 (C) the property is exempt by law from such
24 dispossession or disablement.
25 (vii) Communicating with a consumer regarding a debt
26 by postcard.
27 (viii) [Using] Except for a municipal creditor,
28 using any language or symbol, other than the creditor's
29 address, on any envelope when communicating with a
30 consumer by use of the mails or by telegram, provided
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1 that a creditor may use its business name.
2 (c) Definition.--For the purpose of subsection (b)(2) and
3 (3), the term "consumer" includes the consumer's spouse, parent
4 (if the consumer is a minor), guardian, executor or
5 administrator.
6 (d) Public record exception.--Municipal creditors shall not
7 be subject to the nondisclosure provisions of this act and
8 information concerning municipal debt, taxes, tax claims and
9 municipal claims shall be considered public information not
10 requiring the consent of the debtor prior to publication or to
11 disclosure to or communications with third parties.
12 Section 3. This act shall take effect in 60 days.
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