AND
RELATED LAWS
(
TABLE
OF CONTENTS
Page
12-14-101.
Short
title..........................................................................................................1
12-14-102.
Scope of
article.................................................................................................1
12-14-103.
Definitions........................................................................................................1
12-14-104.
Location information -
acquisition...................................................................3
12-14-105.
Communication in connection with debt
collection.........................................4
12-14-106.
Harassment or
abuse.........................................................................................5
12-14-107.
False or misleading representations.
................................................................5
12-14-108.
Unfair practices.
...............................................................................................6
12-14-109.
Validation of debts.
..........................................................................................7
12-14-110.
Multiple
debts...................................................................................................8
12-14-111.
Legal actions by collection
agencies................................................................8
12-14-112.
Deceptive forms.
..............................................................................................8
12-14-113.
Civil liability.
...................................................................................................9
12-14-114.
Administrative
enforcement...........................................................................10
12-14-115.
License - registration - unlawful acts.
............................................................10
12-14-116.
Collection agency board -
created..................................................................10
12-14-117.
Powers and duties of the administrator.
.........................................................11
12-14-118.
Collection agency license - required
..............................................................11
12-14-119.
Collection agency license - requirements - application - fee -
expiration......11
12-14-120.
License - issuance - grounds for denial - appeal - contents
...........................13
12-14-121.
Collection agency license - renewals
.............................................................13
12-14-122.
Collection agency license - notification of change and reapplication
requirements...............................................................................................13
12-14-123.
Duties of collection
agencies..........................................................................14
12-14-124.
Bond.
..............................................................................................................15
12-14-125.
Debt collectors - registration required (Repealed)
.........................................17
12-14-126.
Solicitor - registration required.
(Repealed)...................................................17
12-14-127.
Debt collectors and solicitors - certificates of registration - application
expiration
- notification of change required. (Repealed) ...........................17
12-14-128.
Unlawful
acts..................................................................................................17
12-14-129.
Criminal penalties.
.........................................................................................18
12-14-130.
Complaint - investigations - powers of the board - sanctions
........................18
procedures.
.................................................................................................19
12-14-131.
Records...........................................................................................................20
12-14-132.
Jurisdiction of courts
......................................................................................20
12-14-133.
Duty of district attorney
.................................................................................20
12-14-134.
Remedies
........................................................................................................20
12-14-135.
Injunction - receiver.
......................................................................................20
12-14-136.
Disposition of fees and fines.
.........................................................................20
12-14-137.
Termination of
board......................................................................................20
RELATED
LAWS
5-12-101.
Legal rate of
interest.........................................................................................21
6-20-201.
Definitions [Notification of Debt by a Health Care
Provider]
.21
6-20-202.
Notice to patient of debt [by a health care
provider]
21
13-21-109.
Recovery of damages for checks, drafts or orders not paid upon
presentment.
...............................................................................................21
12-14-101.
Short title. This article shall be known
and may be cited as the "Colorado Fair Debt
Collection
Practices Act.
12-14-102.
Scope of article. (1) This article shall
apply to any collection agency, solicitor, or
debt
collector that has a place of business located:
(a)
Within this state;
(b)
Outside this state and collects or attempts to collect from consumers who reside
within
this
state for a creditor with a place of business located within this state;
(c)
Outside this state and regularly collects or attempts to collect from consumers
who reside
within
this state for a creditor with a place of business located outside this state;
or
(d)
Outside this state and solicits or attempts to solicit debts for collection from
a creditor
with
a place of business located within this state.
(2)
(Deleted by amendment, L. 95, p. 1224, § 1, effective July 1, 1995.)
12-14-103.
Definitions. As used in this article,
unless the context otherwise requires:
(1)
"Administrator" means the administrator of the "Uniform Consumer
Credit Code",
articles
1 to 9 of title 5, C.R.S., whose office is created in the department of law in
section 5-
6-103, C.R.S.
(1.5)
"Board" means the collection agency board created in section 12-14-116.
(2)
(a) "Collection agency" means any:
(I)
Person who engages in a business the principal purpose of which is the
collection of
debts;
or
(II)
Person who:
(A)
Regularly collects or attempts to collect, directly or indirectly, debts owed or
due or
asserted
to be owed or due another;
(B)
Takes assignment of debts for collection purposes;
(C)
Directly or indirectly solicits for collection debts owed or due or asserted to
be owed or
due
another;
(D)
Collects debt for the department of personnel, but only for the purposes
specified in
paragraph
(d) of this subsection (2);
(b)
"Collection agency" does not include:
(I)
Any officer or employee of a creditor while, in the name of the creditor,
collecting debts
for
such creditor;
(II)
Any person while acting as a collection agency for another person, both of whom
are
related
by common ownership or affiliated by corporate control, if the person acting as
a
collection
agency does so only for creditors to whom it is so related or affiliated and if
the
principal
business of such person is not the collection of debts;
(III)
Any officer or employee of the
attempting
to collect any debt is in the performance of such officer's or employee's
official
duties,
except as otherwise provided in subsection (7) of this section;
(IV)
Any person while serving or attempting to serve legal process on any other
person in
connection
with the judicial enforcement of any debt;
2
(V)
Any nonprofit organization which, at the request of consumers, performs bona
fide
consumer
credit counseling and assists consumers in the liquidation of their debts by
receiving
payments from such consumers and distributing such amounts to creditors;
(VI)
Repealed.
(VII)
Any person collecting or attempting to collect any debt owed or due or asserted
to be
owed
or due another to the extent that:
(A)
Such activity is incidental to a bona fide fiduciary obligation or a bona fide
escrow
arrangement;
(B)
Such activity concerns a debt which was extended by such person;
(C)
Such activity concerns a debt which was not in default at the time it was
obtained by
such
person; or
(D)
Such activity concerns a debt obtained by such person as a secured party in a
commercial
credit
transaction involving the creditor;
(VIII)
Any person whose principal business is the making of loans or the servicing of
debt
not
in default and who acts as a loan correspondent, or seller and servicer for the
owner, or
holder
of a debt which is secured by a deed of trust on real property whether or not
such debt
is
also secured by an interest in personal property.
(c)
Notwithstanding the provisions of subparagraph (VII) of paragraph (b) of this
subsection
(2),
"collection agency" includes any person who, in the process of
collecting his or her own
debts,
uses another name which would indicate that a third person is collecting or
attempting
to
collect such debts.
(d)
For the purposes of section 12-14-108
(1) (f), "collection agency" includes any person
engaged
in any business the principal purpose of which is the enforcement of security
interests.
For purposes of sections 12-14-104, 12-14-105,
12-14-106, 12-14-107, 12-14-108,
and
12-14-109 only, "collection agency" includes a debt collector for the
department of
personnel.
(e)
Notwithstanding paragraph (b) of this subsection (2), "collection
agency" includes any
person
who engages in any of the following activities; except that such person shall be
exempt
from provisions of this article that concern licensing and licensees:
(I)
(Deleted by amendment, L. 2000, p. 935, § 2, effective July 1, 2000.)
(II)
Is an attorney-at-law and regularly engages in the collection or attempted
collection of
debts
in this state;
(III)
Is a person located outside this state whose collection activities are limited
to collecting
debts
not incurred in this state from consumers located in this state and whose
collection
activities
are conducted by means of interstate communications, including telephone, mail,
or
facsimile
transmission, and who is located in another state that regulates and licenses
collection
agencies but does not require
collect
debts in their state if such agencies' collection activities are limited in the
same
manner.
(3)
"Communication" means conveying information regarding a debt in
written or oral form,
directly
or indirectly, to any person through any medium.
(4)
"Consumer" means any natural person obligated or allegedly obligated
to pay any debt.
(4.5)
(a) "Consumer reporting agency" means any person that, for monetary
fees, dues, or on
a
cooperative nonprofit basis, regularly engages in whole or in part in the
practice of
3
assembling
or evaluating consumer credit information or other information on consumers for
the
purpose of furnishing consumer reports to third parties.
(b)
"Consumer reporting agency" shall not include any business entity that
provides check
verification
or check guarantee services only.
(c)
"Consumer reporting agency" shall include any persons defined in 15
U.S.C. sec. 1681a
(f)
or section 12-14.3-102 (4).
(5)
"Creditor" means any person who offers or extends credit creating a
debt or to which a
debt
is owed, but such term does not include any person to the extent such person
receives an
assignment
or transfer of a debt in default solely for the purpose of facilitating
collection of
such
debt for another.
(6)
(a) "Debt" means any obligation or alleged obligation of a consumer to
pay money
arising
out of a transaction, whether or not such obligation has been reduced to
judgment.
(b)
"Debt" does not include a debt for business, investment, commercial,
or agricultural
purposes
or a debt incurred by a business.
(7)
"Debt collector" means any person employed or engaged by a collection
agency to
perform
the collection of debts owed or due or asserted to be owed or due to another,
and
includes
any person employed by the department of personnel, or any division of said
department,
when collecting debts due to the state on behalf of another state agency.
(8)
(Deleted by amendment, L. 2000, p. 935, § 2, effective July 1, 2000.)
(9)
"Location information" means a consumer's place of abode and his
telephone number at
such
place or his place of employment.
(9.3)
"Person" means a natural person, firm, corporation, limited liability
company, or
partnership.
(9.5)
"Principal" means any individual having a position of responsibility
in a collection
agency,
including but not limited to any manager, director, officer, partner, owner, or
shareholder
owning ten percent or more of the stock.
(10)
"Solicitor" means any person employed or engaged by a collection
agency who solicits
or
attempts to solicit debts for collection by such person or any other person.
(11)
"State" means any state, territory, or possession of the
12-14-104.
Location information - acquisition. (1) Any
debt collector or collection agency
communicating
with any person other than the consumer for the purpose of acquiring location
information
about the consumer shall:
(a)
Identify himself, state that he is confirming or correcting location information
concerning
the
consumer, and, only if expressly requested, identify his employer;
(b)
Not state that such consumer owes any debt;
(c)
Not communicate with any such person more than once unless requested to do so by
such
person
or unless the debt collector or collection agency reasonably believes that the
earlier
response
of such person is erroneous or incomplete and that such person now has correct
or
complete
location information;
(d)
Not communicate by postcard;
(e)
Not use any language or symbol on any envelope or in the contents of any
communication
effected by the mails or telegram that indicates that the debtor collector or
4
collection
agency is in the debt collection business or that the communication relates to
the
collection
of a debt; and
(f)
After the debt collector or collection agency knows the consumer is represented
by an
attorney
with regard to the subject debt and has knowledge of, or can readily ascertain,
such
attorney's
name and address, not communicate with any person other than that attorney,
unless
the attorney fails to respond within a reasonable period of time, not less than
thirty
days,
to communication from the debt collector or collection agency
12-14-105.
Communication in connection with debt collection. (1)
Without the prior consent
of
the consumer given directly to the debt collector or collection agency or the
express
permission
of a court of competent jurisdiction, a debt collector or collection agency
shall not
communicate
with a consumer in connection with the collection of any debt:
(a)
At any unusual time, place, or manner known or which should be known to be
inconvenient
to the consumer. In the absence of knowledge of circumstances to the contrary,
a
debt collector or collection agency shall assume that the convenient time for
communicating
with a consumer is after
consumer's
location.
(b)
If the debt collector or collection agency knows the consumer is represented by
an
attorney
with respect to such debt and has knowledge of, or can readily ascertain, such
attorney's
name and address, unless the attorney fails to respond within a reasonable
period
of
time to a communication from the debt collector or collection agency or unless
the
attorney
consents to direct communication with the consumer; or
(c)
At the consumer's place of employment if the debt collector or collection agency
knows
or
has reason to know that the consumer's employer prohibits the consumer from
receiving
such
communication.
(2)
Except as provided in section 12-14-104, without the prior consent of the consumer given
directly
to the debt collector or collection agency or the express permission of a court
of
competent
jurisdiction or as reasonably necessary to effectuate a postjudgment judicial
remedy,
a debt collector or collection agency shall not communicate, in connection with
the
collection
of any debt, with any person other than the consumer, his attorney, a consumer
reporting
agency if otherwise permitted by law, the creditor, the attorney of the
creditor, or
the
attorney of the collection agency.
(3)
(a) If a consumer notifies a debt collector or collection agency in writing that
the
consumer
refuses to pay a debt or that the consumer wishes the debt collector or
collection
agency
to cease further communication with the consumer, the debt collector or
collection
agency
shall not communicate further with the consumer with respect to such debt,
except to:
(I)
Advise the consumer that the debt collector's or collection agency's further
efforts are
being
terminated;
(II)
Notify the consumer that the collection agency or creditor may invoke specified
remedies
that
are ordinarily invoked by such collection agency or creditor; or
(III)
Notify the consumer that the collection agency or creditor intends to invoke a
specified
remedy.
(b)
If such notice from the consumer is made by mail, notification shall be complete
upon
receipt.
5
(c)
In its initial written communication to a consumer, a collection agency shall
include the
following
statement: "FOR INFORMATION ABOUT THE COLORADO FAIR DEBT
COLLECTION
PRACTICES ACT, SEE WWW.AGO.STATE.CO.US/CAB.HTM." If such
notification
is placed on the back of the written communication, there shall be a statement
on
the
front notifying the consumer of such fact.
(d)
(Deleted by amendment, L. 2003, p. 1865, § 2, effective May 21, 2003.)
(4)
For the purpose of this section, "consumer" includes the consumer's
spouse, parent (if the
consumer
is a minor), guardian, executor, or administrator.
(5)
It shall be an affirmative defense to any action based upon failure of a debt
collector or
collection
agency to comply with this section that the debt collector or collection agency
believed,
in good faith, that the debtor was other than a natural person.
12-14-106.
Harassment or abuse. (1) A debt collector
or collection agency shall not engage in
any
conduct the natural consequence of which is to harass, oppress, or abuse any
person in
connection
with the collection of a debt, including, but not limited to, the following
conduct:
(a)
The use or threat of use of violence or other criminal means to harm the
physical person,
reputation,
or property of any person;
(b)
The use of obscene or profane language or language the natural consequence of
which is
to
abuse the hearer or reader;
(c)
The publication of a list of consumers who allegedly refuse to pay debts, except
to a
consumer
reporting agency or to persons meeting the requirements of 15 U.S.C. sec. 1681b
(a)
(3) and section 12-14.3-103 (1) (c);
(d)
The advertisement for sale of any debt to coerce payment of the debt or agreeing
to do so
for
the purpose of solicitation of claims;
(e)
Causing a telephone to ring or engaging any person in telephone conversation
repeatedly
or
continuously with intent to annoy, abuse, or harass any person at the called
number;
(f)
Except as provided in section 12-14-104, the placement of telephone calls without
meaningful
disclosure of the caller's identity within the first sixty seconds after the
other
party
to the call is identified as the debtor.
12-14-107.
False or misleading representations. (1) A
debt collector or collection agency
shall
not use any false, deceptive, or misleading representation or means in
connection with the
collection
of any debt, including, but not limited to, the following conduct:
(a)
The false representation or implication that the debt collector or collection
agency is
vouched
for, bonded by, or affiliated with the
government,
including the use of any misleading name, badge, uniform, or facsimile thereof;
(b)
The false representation of:
(I)
The character, amount, or legal status of any debt; or
(II)
Any services rendered or compensation which may be lawfully received by any debt
collector
for the collection of a debt;
(c)
The false representation or implication that any individual is an attorney or
that any
communication
is from an attorney;
(d)
The representation or implication that nonpayment of any debt will result in the
arrest or
imprisonment
of any person or in the seizure, garnishment, attachment, or sale of any
6
property
or wages of any person unless such action is lawful and the debt collector,
collection
agency, or creditor intends to take such action;
(e)
The threat to take any action that cannot legally be taken or that is not
intended to be
taken;
(f)
The false representation or implication that a sale, referral, or other transfer
of any interest
in
a debt shall cause the consumer to:
(I)
Lose any claim or defense to payment of the debt; or
(II)
Become subject to any practice prohibited by this article;
(g)
The false representation or implication that the consumer committed any crime;
(h)
The false representation or implication that the consumer has engaged in any
disgraceful
conduct;
(i)
Communicating or threatening to communicate to any person credit information
which is
known
or which should be known to be false, including the failure to communicate that
a
disputed
debt is disputed;
(j)
The use or distribution of any written communication which simulates or is
falsely
represented
to be a document authorized, issued, or approved by any court, official, or
agency
of the
to
its source, authorization, or approval;
(k)
The use of any false representation or deceptive means to collect or attempt to
collect any
debt
or to obtain information concerning a consumer;
(l)
Except as otherwise provided for communications to acquire location information
under
section
12-14-104,
the failure to disclose clearly, in the initial written communication made
to
collect a debt or obtain information about a consumer and also, if the initial
communication
with the consumer is oral, in the initial oral communication, that the debt
collector
or collection agency is attempting to collect a debt and that any information
obtained
will be used for that purpose, and, in subsequent communications, that the
communication
is from a debt collector or collection agency; except that this paragraph (l)
shall
not apply to a formal pleading made in connection with a legal action;
(m)
The false representation or implication that accounts have been turned over to
innocent
purchasers
for value;
(n)
The false representation or implication that documents are legal process;
(o)
The use of any business, company, or organization name other than the true name
of the
collection
agency's business, company, or organization;
(p)
The false representation or implication that documents are not legal process
forms or do
not
require action by the consumer;
(q)
The false representation or implication that a debt collector or collection
agency operates
or
is employed by a consumer reporting agency.
12-14-108.
Unfair practices. (1) A debt collector or
collection agency shall not use unfair or
unconscionable
means to collect or attempt to collect any debt, including, but not limited to,
the
following
conduct:
(a)
The collection of any amount, including any interest, fee, charge, or expense
incidental to
the
principal obligation, unless such amount is expressly authorized by the
agreement
creating
the debt or permitted by law;
7
(b)
The acceptance by a debt collector or collection agency from any person of a
check or
other
payment instrument postdated by more than five days unless such person is
notified in
writing
of the debt collector's or collection agency's intent to deposit such check or
instrument
not more than ten nor less than three business days prior to such deposit;
(c)
The solicitation by a debt collector or collection agency of any postdated check
or other
postdated
payment instrument for the purpose of threatening or instituting criminal
prosecution;
(d)
Depositing or threatening to deposit any postdated check or other postdated
payment
instrument
prior to the date on such check or instrument;
(e)
Causing charges to be made to any person for communications by concealment of
the true
purpose
of the communication. Such charges include, but are not limited to, collect
telephone
calls
and telegram fees.
(f)
Taking or threatening to take any nonjudicial action to effect dispossession or
disablement
of
property if:
(I)
There is no present right to possession of the property claimed as collateral
through an
enforceable
security interest;
(II)
There is no present intention to take possession of the property; or
(III)
The property is exempt by law from such dispossession or disablement;
(g)
Communicating with a consumer regarding a debt by postcard;
(h)
Using any language or symbol, other than the debt collector's or collection
agency's
address,
on any envelope when communicating with a consumer by use of the mails or by
telegram;
except that a debt collector or collection agency may use his business name if
such
name
does not indicate that he is in the debt collection business;
(i)
Failing to comply with the provisions of section 13-21-109,
C.R.S., regarding the
collection
of checks, drafts, or orders not paid upon presentment;
(j)
Communicating credit information to a consumer reporting agency earlier than
thirty days
after
the initial notice to the consumer has been mailed, unless the consumer's
last-known
address
is known to be invalid. This paragraph (j) shall not apply to checks, negotiable
instruments,
or credit card drafts.
12-14-109.
Validation of debts. (1) Within five days
after the initial communication with a
consumer
in connection with the collection of any debt, a debt collector or collection
agency
shall,
unless the following information is contained in the initial communication or
the consumer
has
paid the debt, send the consumer a written notice with the disclosures specified
in paragraphs
(a)
to (e) of this subsection (1). If such disclosures are placed on the back of the
notice, the front
of
the notice shall contain a statement notifying consumers of that fact. Such
disclosures shall
state:
(a)
The amount of the debt;
(b)
The name of the creditor to whom the debt is owed;
(c)
That, unless the consumer, within thirty days after receipt of the notice,
disputes the
validity
of the debt, or any portion thereof, the debt will be assumed to be valid by the
debt
collector
or collection agency;
(d)
That, if the consumer notifies the debt collector or collection agency in
writing within the
thirty-day
period that the debt, or any portion thereof, is disputed, the debt collector or
collection
agency will obtain verification of the debt or a copy of a judgment against the
8
consumer
and a copy of such verification or judgment will be mailed to the consumer by
the
debt
collector or collection agency;
(e)
That upon the consumer's written request within the thirty-day period, the debt
collector
or
collection agency will provide the consumer with the name and address of the
original
creditor,
if different from the current creditor.
(f)
and (g) (Deleted by amendment, L. 2003, p. 1866, § 4, effective May 21, 2003.)
(2)
If the consumer notifies the debt collector or collection agency in writing
within the
thirty-day
period described in paragraph (c) of subsection (1) of this section that the
debt, or
any
portion thereof, is disputed or that the consumer requests the name and address
of the
original
creditor, the debt collector or collection agency shall cease collection of the
debt, or
any
disputed portion thereof, until the debt collector or collection agency obtains
verification
of
the debt or a copy of a judgment or the name and address of the original
creditor and mails
a
copy of such verification or judgment or name and address of the original
creditor to the
consumer.
(3)
The failure of a consumer to dispute the validity of a debt under this section
shall not be
construed
by any court as an admission of liability by the consumer.
(4)
It shall be an affirmative defense to any action based upon failure of a debt
collector or
collection
agency to comply with this section that the debt collector or collection agency
believed,
in good faith, that the debtor was other than a natural person.
12-14-110.
Multiple debts. If any consumer owes
multiple debts and makes any single payment
to
any collection agency with respect to such debts, such collection agency shall
not apply such
payment
to any debt which is disputed by the consumer and when so informed shall apply
such
payment
in accordance with the consumer's directions.
12-14-111.
Legal actions by collection agencies. (1)
Any debt collector or collection agency
who
brings any legal action on a debt against any consumer shall:
(a)
In the case of an action to enforce an interest in real property securing the
consumer's
obligation,
bring such action only in a judicial district or similar legal entity in which
such
real
property is located; or
(b)
In the case of an action not described in paragraph (a) of this subsection (1),
bring such
action
only in the judicial district or similar legal entity in which:
(I)
Such consumer signed the contract sued upon;
(II)
Such consumer resides at the commencement of the action; or
(III)
Such action may be brought pursuant to article 13 or 13.5 of title 26,
C.R.S., section 14-
14-104, C.R.S., or article 4 or 6 of title 19, C.R.S., if the action is by a private collection
agency
acting on behalf of a delegate child support enforcement unit
12-14-112.
Deceptive forms. (1) It is unlawful for any
person to design, compile, and furnish
any
form knowing that such form would be used to create the false belief in a
consumer that a
person
other than the creditor of such consumer is participating in the collection or
in the
attempted
collection of a debt that such consumer allegedly owes such creditor when in
fact such
person
is not so participating.
(2)
Any person who violates this section shall be liable to the same extent and in
the same
manner
as a debt collector or collection agency under section 12-14-113
for failure to comply
with
this article.
9
(3)
This section shall apply if the person supplying or using the forms or the
consumer
receiving
the forms is located within this state.
12-14-113.
Civil liability. (1) In addition to
administrative enforcement pursuant to section 12-
14-114
and subject to section 12-14-134
and the limitations provided by subsection (9)
of this
section,
and except as otherwise provided by this section, any debt collector or
collection agency
who
fails to comply with any provision of this article with respect to a consumer is
liable to such
consumer
in an amount equal to the sum of:
(a)
Any actual damage sustained by such consumer as a result of such failure;
(b)
(I) In the case of any action by an individual, such additional damages as the
court may
allow,
but not to exceed one thousand dollars;
(II)
In the case of a class action, such amount for each named plaintiff as could be
recovered
under
subparagraph (I) of this paragraph (b) and such amount as the court may allow
for all
other
class members, without regard to a minimum individual recovery, not to exceed
five
hundred
thousand dollars or one percent of the net worth of the debt collector or
collection
agency,
whichever is the lesser; and
(c)
In the case of any successful action to enforce such liability, the costs of the
action,
together
with such reasonable attorney fees as may be determined by the court.
(1.5)
In the case of any unsuccessful action brought under this section, the plaintiff
shall be
liable
to each defendant in an amount equal to that defendant's cost incurred in
defending the
action,
together with such reasonable attorney fees as may be determined by the court.
(2)
In determining the amount of liability in any action under subsection (1) of
this section,
the
court shall consider, among other relevant factors:
(a)
In any individual action under subparagraph (I) of paragraph (b) of subsection
(1) of this
section,
the frequency and persistence of noncompliance by the debt collector or
collection
agency,
the nature of such noncompliance, and the extent to which such noncompliance was
intentional;
(b)
In any class action under subparagraph (II) of paragraph (b) of subsection (1)
of this
section,
the frequency and persistence of noncompliance by the debt collector or
collection
agency,
the nature of such noncompliance, the resources of the debt collector or
collection
agency,
the number of persons adversely affected, and the extent to which the debt
collector's
or
collection agency's noncompliance was intentional.
(3)
A debt collector or collection agency may not be held liable in any action
brought
pursuant
to the provisions of this article if the debt collector or collection agency
shows by a
preponderance
of evidence that the violation was not intentional or grossly negligent and
which
violation resulted from a bona fide error, notwithstanding the maintenance of
procedures
reasonably adapted to avoid any such error.
(4)
An action to enforce any liability created by the provisions of this article may
be brought
in
any court of competent jurisdiction within one year from the date on which the
violation
occurs.
(5)
No provision of this section imposing any liability shall apply to any act done
or omitted
in
good faith in conformity with any advisory opinion of the board, notwithstanding
that,
after
such act or omission has occurred, such opinion is amended, rescinded, or
determined
by
judicial or other authority to be invalid for any reason.
10
(6)
The policy of this state is not to award double damages under this article and
the federal
"Fair
Debt Collection Practices Act", 15 U.S.C. 1692 et seq. No damages under
this section
shall
be recovered if damages are recovered for a like provision of said federal act.
(7)
Notwithstanding subsection (1) of this section, harassment of the employer or
the family
of
a consumer shall be considered an invasion of privacy and a civil action may be
brought
which
is not subject to the damage limitations of said subsection (1).
(8)
It shall be an affirmative defense to any action based upon failure of a debt
collector or
collection
agency to comply with this section that the debt collector or collection agency
believed,
in good faith, that the debtor was other than a natural person.
(9)
There shall be no private cause of action under this section for any alleged
violation of
section
12-14-128 (4)
(a). Violations of section 12-14-128
(4) (a) may be prosecuted only
through
administrative enforcement pursuant to section 12-14-114.
12-14-114.
Administrative enforcement. Compliance with
this article shall be enforced by the
board.
The board has power to make reasonable rules for the administration and
enforcement of
this
article, including standards of conduct for licensees and collection notices and
forms.
12-14-115.
License - registration - unlawful acts. (1)
It is unlawful for any person to:
(a)
Conduct the business of a collection agency or advertise or solicit, either
in print, by letter,
in
person, or otherwise, the right to make collection or obtain payment of any debt
on behalf
of
another without having obtained a license under this article; or
(b)
Conduct the business of a collection agency under any name other than that under
which
licensed.
(2)
and (3) Repealed.
(3.5)
It is unlawful for a person to act as a collections manager without having
complied with
sections
12-14-119 and
12-14-122.
(4)
It is unlawful for any person to employ any person as a solicitor, collections
manager, or
debt
collector under this article without complying with this section.
12-14-116.
Collection agency board - created. (1) For
the purpose of carrying out the
provisions
of this article, the governor shall appoint five members to the collection
agency board,
which
board is hereby created. The members of the board serving on
to
serve their appointed terms, and their successors shall be appointed for
three-year terms. Upon
the
death, resignation, or removal of any member of the board, the governor shall
appoint a
member
to fill the unexpired term. Any member of the board may be removed by the
governor
for
misconduct, neglect of duty, or incompetence. No member may serve more than two
consecutive
terms without first a lapse of at least one term before being appointed to any
additional
terms.
(2)
No person shall be appointed as a member of such board unless such person is a
bona fide
resident
of the state of
three
members of the board have been engaged in the collection business within the
state of
agency.
Two members of the board shall be representatives of the general public and not
engaged
in the collection business.
11
(3)
Each member of the board shall be allowed a per diem compensation of fifty
dollars and
actual
expenses for each day of active service, payable from the moneys appropriated to
the
board.
(4)
The board shall meet annually for the purpose of organization by electing a
chairman, a
vice-chairman,
and a secretary of the board for the ensuing year.
(5)
The board shall meet regularly at such times and places as the business of the
board may
necessitate
upon full and timely notice to each of the members of the board of the time and
place
of such meeting. A majority of said board shall constitute a quorum of said
board.
12-14-117.
Powers and duties of the administrator. (1)
Any provision of this article to the
contrary
notwithstanding, the board, created by section 12-14-116,
is under the supervision and
control
of the administrator, who may exercise any of the powers granted to the board.
(2)
The administrator is authorized to develop any examination required for the
administration
of this article and to determine the amount of any examination fee. The
administrator
shall offer each such examination at least twice a year, or more frequently if
demand
warrants, and shall establish a passing score for each examination that reflects
a
minimum
level of competency.
(3)
The administrator is authorized to approve or deny any application submitted
pursuant to
this
article and to issue any license authorized by this article.
(4)
Any complaint received by the administrator regarding violations of this article
by an
attorney
shall be forwarded to the supreme court's attorney regulation counsel.
12-14-118.
Collection agency license - required. Any
person acting as a collection agency must
possess
a valid license issued by the administrator in accordance with this article and
any rules
and
regulations adopted pursuant thereto.
12-14-119.
Collection agency license - requirements - application - fee - expiration. (1)
As
requisites
for licensure, the applicant for a collection agency license shall:
(a)
(I) Be owned by, or employ as collections manager or an executive officer of the
agency,
at
least one individual who has been engaged in a responsible position in an
established
collection
agency for a period of at least two years.
(II)
Notwithstanding the requirements of subparagraph (I) of this paragraph (a), the
board
may
substitute other business experience for such requirements where such business
experience
has provided comparable experience in collections.
(b)
(I) Employ a collections manager who shall:
(A)
If hired on or after
administrator,
unless such person was approved by the collection agency board as collections
manager
before
collection
agency in this state.
(B)
Be responsible for the actions of the debt collectors in that office.
(II)
The collections manager may be the same individual specified in paragraph (a) of
this
subsection
(1) if the collections manager also meets the qualifications of said paragraph
(a).
(c)
File a bond in the amount and manner specified in section 12-14-124;
(d)
If a foreign corporation, comply fully with the laws of this state so as to
entitle it to do
business
within the state.
12
(2)
Each applicant for a collection agency license shall submit an application
providing all
information
in the form and manner the administrator shall designate, including, but not
limited
to:
(a)
The location, ownership, and, if applicable, the previous history of the
business and the
name,
address, age, and relevant debt-collection experience of each of the principals
of the
business;
(b)
A duly verified financial statement for the previous year;
(c)
If a corporation, the name of the shareholder and the number of shares held by
any
shareholder
owning ten percent or more of the stock; and
(d)
For the principals and the collections manager of the applicant:
(I)
The conviction of any felony or the acceptance by a court of competent
jurisdiction of a
plea
of guilty or nolo contendere to any felony;
(II)
The denial, revocation, or suspension of any license issued to any collection
agency
which
employed or was owned by such persons, in whole or in part, directly or
indirectly,
and
a statement of their position and authority at such collection agency:
(A)
For any license issued pursuant to this article; or
(B)
For any comparable license issued by any other jurisdiction;
(III)
The taking of any other disciplinary or adverse action or the existence of any
outstanding
complaints against any collection agency which employed or was owned in
whole
or in part, directly or indirectly, by such persons, and a statement of their
position and
authority
at such collection agency:
(A)
For any license issued pursuant to this article; or
(B)
When such action was taken by any other jurisdiction or such complaint exists in
any
other
jurisdiction, whether or not a license was issued by that jurisdiction;
(IV)
The suspension or termination of approval of any collections manager under this
article,
or
any other disciplinary or adverse action taken against the applicant, principal,
or
collections
manager by the board or any other jurisdiction.
(3)
At the time the application is submitted, the applicant shall pay a
nonrefundable
investigation
fee in an amount to be determined by the board.
(4)
When the administrator approves the application, the applicant shall pay a
nonrefundable
license
fee in an amount to be determined by the administrator in consultation with the
board.
(5)
The administrator shall establish procedures for the maintenance of license
lists and the
establishment
of initial and renewal license fees and schedules. The administrator may
change
the renewal date of any license issued pursuant to this article to the end that
approximately
the same number of licenses are scheduled for renewal in each month of the
year.
Where any renewal date is so changed, the fee for the license shall be
proportionately
increased
or decreased, as the case may be. Every licensee shall pay the administrator a
license
fee to be determined and collected pursuant to section 12-14-121
and subsection (4)
of
this section, and shall obtain a license certificate for the current license
period.
Notwithstanding
any other provision of this section, a licensee, at any time, may voluntarily
surrender
the license to the administrator to be cancelled, but such surrender shall not
affect
the
licensee's liability for violations of this article that occurred prior to the
date of surrender.
(6)
(Deleted by amendment, L. 2003, p. 1868, § 8, effective May 21, 2003.)
(7)
A collection agency must obtain a license for its principal place of business,
but its
branch
offices, if any, need not obtain separate licenses. A collection agency with
branch
13
offices
must notify the administrator in writing of the location of each branch office
within
thirty
days after the branch office commences business.
12-14-120.
License - issuance - grounds for denial - appeal - contents.
(1) Upon the approval
of
the license application by the administrator and the satisfaction of all
application
requirements,
the administrator shall issue the applicant a license to operate as a collection
agency.
(2)
The administrator may deny any application for a license or its renewal if any
grounds
exist
that would justify disciplinary action under section 12-14-130,
for failure to meet the
requirements
of section 12-14-119, or if the applicant, the applicant's principals, or the
applicant's
collections manager have fraudulently obtained or attempted to obtain a license.
(3)
If any application for a license or its renewal is denied, the applicant may
appeal the
decision
pursuant to section 24-4-104, C.R.S.
(4)
The license shall state the name of the licensee, location by street and number
or office
building
and room number, city, county, and state where the licensee has his principal
place
of
business, together with the number and date of such license and the date of
expiration of
the
license, and shall further state that it is issued pursuant to this article and
that the licensee
is
duly authorized under this article.
(5)
Repealed.
(6)
The administrator may deny any application for a license or its renewal if the
collection
agency
has failed to perform the duties enumerated in section 12-14-123.
(7)
The administrator may deny any application for a license or its renewal if the
collection
agency
does not have a positive net worth.
12-14-121.
Collection agency license - renewals. Each
licensee shall make an application to
renew
its license in the form and manner prescribed by the administrator. The
application shall
be
accompanied by a nonrefundable renewal fee in an amount determined by the
administrator in
consultation
with the board.
12-14-122.
Collection agency license - notification of change and reapplication
requirements.
(1) (a) Upon any of the following changes,
the licensee shall notify the
administrator
in writing of such change within thirty days after its occurrence:
(I)
Change of business name or address;
(II)
If a corporation, change in ownership of ten or more percent but less than fifty
percent of
the
corporate stock.
(b)
If the licensee fails to provide such written notification, the license shall
automatically
expire
on the thirtieth day following such change.
(2)
(a) Upon any of the changes specified in paragraph (c) of this subsection (2),
the licensee
shall
apply for a new license within thirty days of said change. The administrator
shall have
twenty-five
days to review the application and issue or deny the new license. If the
administrator
denies the license, the administrator shall provide to the licensee a written
statement
stating why the application for the license was denied, and the licensee shall
have
fifteen
days to cure any defects in said application. The administrator shall approve or
deny
the
resubmitted application within fifteen days.
(b)
If the licensee fails to file an application for a new license, the license
shall expire on the
thirtieth
day following the change which necessitated the new license application. If the
14
application
is denied and the licensee fails to resubmit the application within fifteen days
of
said
denial, the license shall expire on the fifteenth day following the denial.
(c)
The changes which require a new license application are:
(I)
In a sole proprietorship or partnership, any change in the persons owning the
collection
agency;
(II)
In a corporation, any change of ownership of fifty percent or more of the stock
in any
one
transaction or a cumulative change of ownership of fifty percent or more from
the date of
the
issuance of the license or from the date of the latest renewal of the license;
(III)
Any change of ownership structure, including but not limited to a change to or
from a
sole
proprietorship, partnership, or corporation. No investigation fee shall be
required in the
event
of such a change and the application required may be more abbreviated than that
required
for an initial license, as determined by the administrator.
(3)
(a) Upon a change of collections manager, the licensee shall notify the
administrator in
the
form and manner designated by the administrator. The licensee shall appoint a
new
collections
manager within thirty days of such change.
(b)
The administrator, within fifteen days, shall approve or disapprove the
qualifications of
the
new collections manager, or shall direct the new collections manager to take the
examination
authorized pursuant to section 12-14-119
(1) (b).
(c)
The licensee may continue to operate as a collection agency unless and until the
administrator
disapproves the qualifications of the new collections manager.
(4)
Any licensee which has submitted an application for a new license may continue
to
operate
as a collection agency until the final decision of the administrator.
(5)
The licensee may appeal the final decision of the administrator pursuant to
section 24-4-
104, C.R.S.
12-14-123.
Duties of collection agencies. (1) A
licensee shall:
(a)
Maintain, at all times, liquid assets in the form of deposit accounts in the
total sum of not
less
than two thousand five hundred dollars more than all sums due and owing to all
of its
clients;
(b)
Maintain, at all times, an office within this state which is open to the public
during
normal
business hours and which is staffed by at least one full-time employee, said
office to
keep
a record of all moneys collected and remitted by such agency for residents of
(c)
Maintain, at all times, a trust account for the benefit of its clients which
shall contain, at
all
times, sufficient funds to pay all sums due or owing to all of its clients. The
trust account
shall
be maintained in a commercial bank, industrial bank, or savings and loan
association
account
in this state or accessible in a branch in this state until disbursed to the
creditor. Such
account
shall be clearly designated as a trust account and shall be used only for such
purposes
and not as an operating account. A deposit of all funds received to a trust
account
followed
by a transfer of the agency share of the collection to an operating account is
not a
violation
of this section.
(d)
Within thirty days after the last day of the month in which any collections are
made for a
client,
account to the client for all collections made during that month and remit to
the client
all
moneys owed to the client pursuant to the agreement between the client and the
collection
agency;
15
(e)
Upon written demand of the board, within five days of receipt of such demand,
produce a
complete
set of all form notices or form letters used by the licensee in the collection
of
accounts;
(f)
Be responsible, pursuant to this article, for violations of this article that
are caused by its
collections
manager, debt collectors, or solicitors.
(2)
(a) No collection agency shall employ any collections manager, debt collector,
or
solicitor
who has been convicted of or who has entered a plea of guilty or nolo contendere
to
any
crime specified in part 4 of article 4 or in part 1, 2, 3, 5, or 7 of article 5 of title 18,
C.R.S.,
or any similar crime under the jurisdiction of any federal court or court of
another
state.
(b)
No collection agency shall be owned or operated by the following persons who
have been
convicted
of or who have entered a plea of guilty or nolo contendere to any crime
specified
in
part 4 of article 4 or in part 1, 2, 3, 5, or 7 of article 5
of title 18, C.R.S.,
or any similar
crime
under the jurisdiction of any federal court or court of another state:
(I)
The owner of a sole proprietorship;
(II)
A partner of a partnership;
(III)
A member of a limited liability company; or
(IV)
An officer or director of a corporation.
(3)
Paragraphs (a), (c), and (d) of subsection (1) of this section do not apply to a
person
collecting
or attempting to collect a debt owned by the person collecting or attempting to
collect
such debt.
12-14-124.
Bond. (1) Each licensee shall maintain at
all times and each applicant shall file,
prior
to the issuance of any license to such applicant, a bond in the sum of twelve
thousand
dollars
plus an additional two thousand dollars for each ten thousand dollars or part
thereof by
which
the average monthly sums remitted or owed to all of its clients during the
previous year
exceed
fifteen thousand dollars; or, in the alternative, an applicant or licensee shall
present
evidence
of a savings account, deposit, or certificate of deposit of the same sum and
meeting the
requirements
of section 11-35-101,
C.R.S. The total amount of the bond shall not exceed twenty
thousand
dollars and shall be in favor of the attorney general of the state of
the
people of the state of
by
the applicant or licensee as principal and by a corporation which is licensed by
the
commissioner
of insurance to transact the business of fidelity and surety insurance as
surety. If
any
such surety, during the life of the bond, cancels the bond or reduces the penal
sum of the
bond,
it immediately shall notify the board in writing. The board shall give notice to
the licensee
that
the bond has been cancelled or reduced and that the licensee's license shall
automatically
expire
unless a new or increased bond with proper sureties is filed within thirty days
after the
date
the board received the notice, or on such later date as is stated in the
surety's notice.
(2)
The bond shall include a condition that the licensee shall, upon demand in
writing made
by
the board, pay over to said board for the use of any client from whom any debt
is taken or
received
for collection by said licensee, the proceeds of such collection, less the
charges for
collection
in accordance with the terms of the agreement made between said licensee and the
client.
(3)
A client may file with the board a duly verified claim as to money due such
client for
money
collected by a licensee. If the board makes a preliminary determination that a
claim
16
meets
the requirements of this section it shall make a demand for the amount claimed.
Such
demand
may be made on the licensee, the surety, or both.
(4)
If a receiver has been appointed by any court of competent jurisdiction in the
state of
of
the board, first had and obtained, may make demand for and receive payment on
said bond
from
the surety on such bond of said licensee and, upon order of court first had and
obtained,
may
bring suit upon said bond in the name of such receiver, without joining the
board as a
party
to said action.
(5)
If a client has filed a duly verified claim with the board, which has refused to
make
demand
upon the licensee or surety, the client may bring suit against the licensee or
surety on
the
bond for the recovery of money due from such licensee without assignment of such
bond
to
the client. Nothing in this section shall preclude a client from making a demand
on both
the
licensee and the surety.
(6)
(a) Said bond shall include a condition that the licensee shall, upon written
demand, turn
over
to the client any and all notes, valuable papers, or evidence of indebtedness
which may
have
been deposited with said licensee by the client, but such licensee shall not be
required
to
return any such papers, notes, or evidence of indebtedness on debts in process
of
collection,
unless reimbursed by the client for the services performed on the debt so
evidenced.
(b)
"Debts in process of collection" means any debts which have been in
said licensee's
hands
for less than nine months, debts on which payments are being made, or on which
payments
have been promised, debts on which suit has been brought, and claims which have
been
forwarded to any other collection agency or attorney.
(7)
Such bond shall cover all matters placed with said licensee during the term of
the license
granted
and any renewal, except as provided in this section. Such bond may be enforced
in
the
manner described in this section, by a receiver appointed to take charge of the
assets of
any
licensee, or by any client if the board refuses to act. The aggregate liability
of the surety,
for
any and all claims which may arise under such bond, shall not exceed the penalty
of such
bond.
(8)
Any licensee, at any time, may file a new bond with the board. Any surety may
file with
the
board notice of withdrawal as surety on the bond of any licensee. Upon filing of
such
new
bond or on expiration of thirty days after the filing of notice of withdrawal as
surety by
the
surety, the liability of the former surety for all future acts of the licensee
shall terminate,
except
as provided in subsection (9) of this section. The board shall cancel the bond
given by
any
surety company upon being advised its license to transact the business of
fidelity and
surety
insurance has been revoked by the commissioner of insurance and shall notify the
licensee.
(9)
No action shall be brought upon any bond required to be given and filed, after
the
expiration
of two years from the surrender, revocation, or expiration of the license issued
thereunder.
After the expiration of said period of two years, all liability of the surety
upon the
said
bond shall cease if no action has been commenced upon said bond before the
expiration
of
the period.
(10)
In lieu of an individual surety bond, the administrator may authorize a blanket
bond
covering
qualifying licensees in the sum of two million dollars in favor of the attorney
general
of the state of
17
collection
agency board. Each new and renewal applicant shall pay a fee in an amount
determined
by the administrator to offset the applicant's share of the blanket bond.
Conditions
and procedures regarding the bond shall be as set forth in this section for
individual
bonds.
(11)
This section does not apply to a person collecting or attempting to collect a
debt owned
by
the person collecting or attempting to collect such debt.
12-14-125.
Debt collectors - registration required.
(1) Repealed.
(2)
(Deleted by amendment, L. 95, p. 1237, § 19, effective July 1, 1995.)
12-14-126.
Solicitor - registration required. (Repealed)
12-14-127.
Debt collectors and solicitors - certificates of registration - application -
expiration
- notification of change required. (Repealed)
12-14-128.
Unlawful acts. (1) In addition to the
unlawful acts specified in sections 12-14-112
and
12-14-115, it is unlawful and a violation of this article for any person:
(a)
To refuse or fail to comply with section 12-14-104,
12-14-105, 12-14-106, 12-14-107,
12-14-108,
12-14-109, 12-14-110, 12-14-118, 12-14-119 (1), or 12-14-123 (1) (b) to (1) (e)
or
(2);
(b)
To aid or abet any person operating or attempting to operate in violation of
this article,
including
but not limited to section 12-14-115; except that nothing in this article shall
prevent
any licensed collection agency from accepting, as forwardee, claims for
collection
from
any collection agency or attorney whose place of business is outside this state;
(c)
To recover or attempt to recover treble damages for any check, draft, or order
not paid on
presentment
without complying with the provisions of section 13-21-109,
C.R.S.
(2)
It is unlawful and a violation of this article for any licensee or any attorney
representing a
licensee
to invoke a cognovit clause in any note so as to confess judgment.
(3)
It is unlawful and a violation of this article for any licensee to render or to
advertise that it
will
render legal services; except that a licensee may solicit claims for collection
and take
assignments
and pursue the collection thereof subject to the provisions of law concerning
the
unauthorized
practice of law.
(4)
It is unlawful and a violation of this article for any licensee, collections
manager, debt
collector,
or solicitor:
(a)
To refuse or fail to comply with any rule and regulation adopted pursuant to
this article or
any
lawful order of the board or administrator; or
(b)
To aid or abet any person in such refusal or failure.
(5)
It is unlawful and a violation of this article for any person to falsify any
information or
make
any misleading statements in any application authorized under this article.
(6)
Any officer or agent of a corporation who personally participates in any
violation of this
article
shall be subject to the penalties prescribed in section 12-14-129
for individuals.
18
12-14-129.
Criminal penalties. Any person who violates
any provision of section 12-14-128
(1),
(2), (3), or (4) commits a class 1 misdemeanor and shall be punished as provided
in section
18-1.3-501,
C.R.S.
12-14-130.
Complaint - investigations - powers of the board - sanctions. (1)
Upon the filing
with
the board by any interested person of a written complaint charging any person
with a
violation
of this article, any rule adopted pursuant to this article, or any lawful order
of the board,
the
board shall conduct an investigation thereof.
(2)
For reasonable cause, the board may, on its own motion, conduct an investigation
of the
conduct
of any person concerning compliance with this article.
(3)
If any licensee or one of its principals or collections managers is convicted of
or enters a
plea
of guilty or nolo contendere to any crime specified in part 4 of article 4 or in
part 1, 2, 3,
5,
or 7 of article 5 of title 18,
C.R.S., or any similar crime under the jurisdiction of any
federal
court or court of another state, said conviction or plea shall constitute
grounds for
disciplinary
action under this section.
(4)
In any proceeding held under this section, the board may accept as prima facie
evidence
of
grounds for disciplinary or adverse action any disciplinary or adverse action
taken against
a
licensee, the licensee's principals, debt collector, solicitor, or collections
manager by
another
jurisdiction that issues professional, occupational, or business licenses, if
the conduct
which
prompted the disciplinary or adverse action by that jurisdiction would be
grounds for
disciplinary
action under this section.
(5)
For reasonable cause, the board, or someone designated by it for such purpose,
has the
right,
during normal business hours without resort to subpoena, to examine the books,
records,
and files of any licensee. If the books, records, and files are located outside
designee.
(6)
(a) For reasonable cause, the board may require the making and filing, by any
licensee, at
any
time, of a written, verified statement of the licensee's assets and liabilities,
including, if
requested,
a detailed statement of amounts due claimants. The board may also require an
audited
statement when cause has been shown that an audited statement is needed.
(b)
Any financial statement of any applicant or licensee required to be filed with
the board
shall
not be a public record but may be introduced in evidence in any court action or
in any
administrative
action involving the applicant or licensee.
(7)
For the purpose of any proceeding under this article, the board may subpoena
witnesses
and
compel them to give testimony under oath. If any witness subpoenaed by the board
or an
administrative
law judge fails or refuses to appear or testify, the subpoenaing authority may
petition
the district court, and, upon proper showing, the court may order such witness
to
appear
and testify. Disobedience of the order of court may be punished as a contempt of
court.
(8)
The board may appoint an administrative law judge pursuant to part 10 of article
30 of
title
24, C.R.S., to
conduct any proceedings authorized under this article.
(9)
If the board finds cause to believe a licensee or collections manager has
violated this
article,
any rules adopted pursuant to this article, or any lawful order of the board,
the board
shall
so notify the licensee or collections manager and hold a hearing. Any
proceedings
conducted
pursuant to this section shall be in accordance with article 4
of title 24, C.R.S.
19
(10)
(a) If the board or the administrative law judge finds that the licensee or
collections
manager
has violated this article, the rules adopted pursuant to this article, or any
lawful
order
of the board, or if the licensee fraudulently obtained a license, the board may
issue
letters
of admonition, deny, revoke, or suspend the license of such licensee or approval
of the
collections
manager, place such licensee or collections manager on probation, or impose
administrative
fines in an amount up to one thousand dollars per violation on the licensee or
collections
manager.
(b)
The board or administrator may issue letters of admonition pursuant to paragraph
(a) of
this
subsection (10) without a hearing; except that the licensee or collections
manager
receiving
the letter of admonition may request a hearing before the board to appeal the
issuance
of the letter.
(c)
A letter of admonition may be issued to a licensee or collections manager
whether or not
a
license or approval has been surrendered prior to said issuance.
(d)
No person whose license has been revoked shall be licensed again under the terms
of this
article
for five years. No person hired as a collections manager whose approval has been
terminated
by the administrator for a violation of this article shall be hired again as a
collections
manager for five years.
(11)
The court of appeals shall have jurisdiction to review all final actions and
orders that are
subject
to judicial review of the collection agency board. Such proceedings shall be
conducted
in accordance with section 24-4-106
(11), C.R.S.
(12)
Members of the collection agency board, expert witnesses, and consultants shall
be
immune
from civil suit when they perform any duties in connection with any proceedings
authorized
under this section in good faith. Any person who files a complaint in good faith
under
this section shall be immune from civil suit.
procedures.
(1) Any interested person may file a
written complaint with the executive director
of
the department of personnel charging a debt collector in the employ of the
department of
personnel
with a violation of:
(a)
This article or a rule promulgated pursuant thereto;
(b)
A lawful order of the state board of ethics; or
(c)
The standards of conduct set forth in the code of conduct developed by the
department of
personnel
for such debt collectors.
(2)
Each complaint filed pursuant to this section shall be referred to the executive
director of
the
department of personnel who shall conduct an investigation to determine if a
violation of
subsection
(1) of this section occurred. If the executive director makes a determination
that a
violation
did occur, the debt collector who is the subject of the complaint shall be
subject to
the
disciplinary procedures set forth in rules adopted by the state personnel board.
If a
determination
made pursuant to this subsection (2) is unsatisfactory to any party, an appeal
may
be made to the board of ethics for the executive branch of state government in
the office
of
the governor.
(3)
If the executive director of the department of personnel, or the board of ethics
in the case
of
an appeal, makes a determination that a debt collector in the employ of the
department of
personnel
has acted in violation of this article or a rule promulgated pursuant thereto, a
lawful
order of the state board of ethics, or the code of conduct described in
paragraph (c) of
20
subsection
(1) of this section, such determination shall be made a part of the personnel
file of
the
debt collector against whom the complaint was filed.
12-14-131.
Records. The administrator shall keep a
suitable record of all license applications
and
bonds required to be filed. Such record shall state whether a license has been
issued under
such
application and bond and, if revoked, the date of the filing of the order of
revocation. The
administrator
shall keep a list of each person who has had a license revoked or has been
terminated
as a collections manager for a violation of this article. In such record, all
licenses
issued
shall be indicated by their serial numbers and the names and addresses of the
licensees.
This
section shall apply to renewal applications and renewal licenses. Such record
shall be open
for
inspection as a public record in the office of the administrator
12-14-132.
Jurisdiction of courts. County courts shall
have concurrent jurisdiction with the
district
courts of this state in all criminal prosecutions for violations of this article
12-14-133.
Duty of district attorney. It is the duty
of the district attorney to prosecute all
violations
of the provisions of this article occurring within his district.
12-14-134.
Remedies. The remedies provided in this
article are in addition to and not exclusive
of
any other remedies provided by law.
12-14-135.
Injunction - receiver. The district court
in and for the city and
upon
application of the board, may issue an injunction or other appropriate order
restraining any
person
from any violation of this article and may appoint a receiver or award any other
relief to
effectuate
the provisions of this article. This provision shall be in addition to any other
remedy
and
shall not prohibit the enforcement of any other law. The board shall not be
required to show
irreparable
injury or to post a bond.
12-14-136.
Disposition of fees and fines. (1) (a) All
revenue, except fines, collected pursuant to
this
article shall be collected by the administrator and transmitted to the state
treasurer, who shall
credit
the same to the collection agency cash fund, which fund is hereby created. The
general
assembly
shall make annual appropriations from such fund for the uses and purposes of
this
article.
All revenue credited to such fund, including earned interest, shall be used for
the
administration
and enforcement of this article.
(b)
Notwithstanding any provision of paragraph (a) of this subsection (1) to the
contrary, on
from
the collection agency cash fund and transfer such sum to the general fund.
(c)
Notwithstanding any provision of paragraph (a) of this subsection (1) to the
contrary, on
collection
agency cash fund and transfer such sum to the general fund.
(2)
All fines collected pursuant to this article, including but not limited to fines
collected
pursuant
to section 12-14-130, shall be collected by the administrator and transmitted to
the
state
treasurer, who shall credit the same to the general fund.
12-14-137.
Termination of board. The collection agency
board shall be terminated July 1,
2008.
Prior to such termination, the board shall be reviewed as provided in section 24-34-104,
C.R.S.
21
RELATED
LAWS
5-12-101.
Legal rate of interest. If there is no
agreement or provision of law for a different
rate,
the interest on money shall be at the rate of eight percent per annum,
compounded annually.
6-20-201.
Definitions [Notification of Debt by a Health Care Provider].
For
the purposes of this part 2, unless the context otherwise requires:
(1)
"Collection agency" shall have the same meaning as in section
12-14-103 (2), C.R.S.
(2)
"Health care provider" includes a licensed health care facility
pursuant to article 3 of title 25,
C.R.S.,
and any other health care provider.
6-20-202.
Notice to patient of debt [by a health care provider].
(1)
(a) When a person has health benefit coverage to provide payment for care or
treatment
rendered
by a health care provider and the person has notified the health care provider
of
coverage,
and the health coverage plan as defined in section 10-16-102 (22.5), C.R.S.,
pays only
a
portion of the debt, the health care provider shall mail written notice to the
last-known address
of
the person responsible for payment of the debt at least thirty days before any
collection
activity
on any amount due and owing the health care provider.
(b)
The notice required by paragraph (a) of this subsection (1) shall include the
amount due and
owing;
the name, address, and telephone number of the health care provider; where
payment may
be
made; the date of service; and the last date the health care provider will
accept payment prior
to
the debt being submitted to a collection agency or reporting adverse information
to a
consumer
reporting agency for the debt for which notice was provided.
(2)
(a) If the health care provider fails to provide the person with notice of such
debt and all other
information
required by subsection (1) of this section, the health care provider shall not
pursue
any
rights to collect such outstanding amount either through a collection agency or
by any
further
efforts of the health care provider to collect the debt. In addition, the health
care provider
may
not report adverse information to a consumer reporting agency for the debt for
which notice
was
provided without providing notice to the person pursuant to subsection (1) of
this section.
The
health care provider shall assist the person in correcting any adverse credit
information
because
of the health care provider's failure to provide notice pursuant to subsection
(1) of this
section.
(b)
Notwithstanding any provision of this section to the contrary, a health care
provider may
remedy
a failure to give notice by providing a written report to the collection agency
to withhold
any
collection efforts and withholding any of the health care provider's own
collection efforts
until
the provider complies with the notice and time requirements pursuant to
subsection (1) of
this
section.
(c)
Nothing in this subsection (2) shall be construed to require a health care
provider to perform
additional
attempts to notify a person of the person's portion of the debt other than
mailing the
notice
required pursuant to subsection (1) of this section to the person's last-known
address and
maintaining
a record of such mailing.
13-21-109.
Recovery of damages for checks, drafts, or orders not paid upon presentment.
(1)
Any person who obtains money, merchandise, property, or other thing of value, or
who
makes
any payment of any obligation other than an obligation on a consumer credit
transaction
as
defined in section 5-1-301, C.R.S., by means of making any check, draft, or
order for the
22
payment
of money upon any bank, depository, person, firm, or corporation which is not
paid
upon
its presentment is liable to the holder of such check, draft, or order or any
assignee for
collection
for one of the following amounts, at the option of the holder or such assignee:
(a)
The face amount of the check, draft, or order plus actual damages determined in
accordance
with the provisions of the "Uniform Commercial Code", title 4, C.R.S.;
or
(b)
An amount equal to the face amount of the check, draft, or order and:
(I)
The amount of any reasonable posted or contractual charge not exceeding twenty
dollars;
and
(II)
If the check, draft, or order has been assigned for collection to a person
licensed as
a
collection agency pursuant to article 14 of title 12, C.R.S., as costs of
collection, twenty percent
of
the face amount of the check, draft, or order but not less than twenty dollars;
or
(c)
An amount as provided in subsection (2) of this section.
(2)
(a) If notice of nonpayment on presentment of the check, draft, or order has
been given in
accordance
with the provisions of subsections (3) and (4) of this section and the total
amount due
as
set forth in the notice has not been paid within fifteen days after such notice
is given, instead
of
the amounts set forth in paragraph (a) or (b) of subsection (1) of this section,
the person shall
be
liable to the holder or any assignee for collection for three times the face
amount of the check
but
not less than one hundred dollars.
(b)
The person, also referred to in this section as the "maker", shall not
be liable in
accordance
with the provisions of paragraph (a) of this subsection (2) if he establishes
any one of
the
following:
(I)
That the account contained sufficient funds or credit to cover the check, draft,
or
order
at the time the check, draft, or order was made, plus all other checks, drafts,
and orders on
the
account then outstanding and unpaid;
(II)
That the check, draft, or order was not paid because a paycheck, deposited in
the
account
in an amount sufficient to cover the check, draft, or order, was not paid upon
presentment;
(III)
That funds sufficient to cover the check, draft, or order were garnished,
attached,
or
set off and the maker had no notice of such garnishment, attachment, or setoff
at the time the
check,
draft, or order was made;
(IV)
That the maker of the check, draft, or order was not competent or of full age to
enter
into a legal contractual obligation at the time the check, draft, or order was
made;
(V)
That the making of the check, draft, or order was induced by fraud or duress;
(VI)
That the transaction which gave rise to the obligation for which the check,
draft,
or
order was given lacked consideration or was illegal.
(3)
Notice that a check, draft, or order has not been paid upon presentment shall be
in writing
and
given in person and receipted for, or by personal service, or by depositing the
notice by
certified
mail, return receipt requested and postage prepaid, or by regular mail supported
by an
affidavit
of mailing sworn and retained by the sender, in the
the
recipients most recent address known to the sender. If the notice is mailed
and not returned
as
undeliverable by the
have
been given on the date of mailing. For the purpose of this subsection (3),
"undeliverable"
does
not include unclaimed or refused.
(4)
The notice given pursuant to subsection (3) of this section shall include the
following
information
regarding the unpaid check, draft, or order:
(a)
The date the check, draft, or order was issued;
23
(b)
The name of the bank, depository, person, firm, or corporation on which it was
drawn;
(c)
The name of the payee;
(d)
The face amount;
(e)
A statement of the total amount due, which shall be itemized and shall not
exceed the
amount
permitted under paragraph (a) or (b) of subsection (1) of this section;
(f)
A statement that the maker has fifteen days from the date notice was given to
make
payment
in full of the total amount due; and
(g)
A statement that, if the total amount due is not paid within fifteen days after
the date
notice
was given, the maker may be liable in a civil action for three times the face
amount of the
check
but not less than one hundred dollars and that, in such civil action, the court
may award
court
costs and reasonable attorney fees to the prevailing party.
(5)
No holder or assignee for collection shall assert that any maker has liability
for any amount
set
forth under subsection (2) of this section unless such liability has been
determined by entry of
a
final judgment by a court of competent jurisdiction.
(6)
In any civil action brought under this section, the prevailing party may recover
court costs
and
reasonable attorney fees. In addition, in an action brought under paragraph (b)
of subsection
(1)
of this section, if the holder or assignee for collection prevails, actual costs
of collection may
be
recovered by the holder or assignee for collection if such actual costs of
collection are greater
than
the costs of collection provided under such paragraph (b).
(7)
Nothing in this section shall be deemed to apply to any check, draft, or order
on which
payment
has been stopped by the maker by reason of a dispute relating to the money,
merchandise,
property, or other thing of value obtained by the maker.
(8)
Nothing in this section applies to any criminal case or affects eligibility or
terms of
probation.
(9)
Any limitation on a cause of action under this section, except a cause of action
under
subsection
(2) of this section, shall be governed by the provisions of section 13-80-103.5.
Any
limitation
on a cause of action under subsection (2) of this section shall be governed by
the
provisions
of section 13-80-102.