# Rosenthal Fair Debt Collection Practices Act ## Cal. Civ. Code, §§ 1788–1788.33 California's primary consumer-debt collection statute. It is the state-law analog to the federal FDCPA — but with critical California-specific expansions. > **NOT LEGAL ADVICE.** Verify current text at leginfo. > legislature.ca.gov. ## The critical California distinction: applies to original creditors The FDCPA covers only **third-party debt collectors** — entities collecting on behalf of someone else. It does NOT apply to original creditors collecting their own debts. The Rosenthal Act **covers original creditors** (first-party collectors). Cal. Civ. Code, § 1788.2(c) defines "debt collector" to include: > "any person who, in the ordinary course of business, > regularly, on behalf of himself or herself or others, engages > in debt collection." This is broader than the FDCPA definition and encompasses first-party collectors. *Komarova v. National Credit Acceptance, Inc.* (2009) 175 Cal.App.4th 324 broadly construes Rosenthal Act coverage. **Practical implication**: When the original creditor (Bank of America, Capital One, Synchrony Bank) is the plaintiff — not a debt buyer — the FDCPA may not apply, but the Rosenthal Act does. Always plead the Rosenthal Act. ## FDCPA incorporation — § 1788.17 Cal. Civ. Code, § 1788.17 provides: > "Notwithstanding any other provision of this title, every > debt collector collecting or attempting to collect a consumer > debt shall comply with the provisions of Sections 1692b to > 1692j, inclusive, of, and shall be subject to the remedies > in Section 1692k of, Title 15 of the United States Code." Effect: Every FDCPA § 1692b–1692j prohibition is incorporated directly into the Rosenthal Act. Every FDCPA violation in California is simultaneously a Rosenthal Act violation — with Rosenthal's remedies (§ 1788.30) applying on top of FDCPA § 1692k. ## Definitions — § 1788.2 **"Debt collector"** (§ 1788.2(c)): - Any person who regularly engages in debt collection in the ordinary course of business - On behalf of themselves or others - Includes original creditors, debt buyers, collection agencies, and attorneys who regularly collect debts **"Debt"** or **"consumer debt"** (§ 1788.2(f)): - Money, property, or their equivalent due or owing by a natural person from a consumer credit transaction - Includes credit-card debt, personal loans, utility bills, medical bills, and similar personal obligations **"Consumer credit transaction"** (§ 1788.2(e)): - Transaction by a natural person primarily for personal, family, or household purposes **"Debtor"** (§ 1788.2(h)): - A natural person who is alleged to owe a consumer debt ## Prohibited practices — §§ 1788.10–1788.16 ### § 1788.10 — Prohibited collection practices No debt collector shall: - (a): Communicate with the debtor by use of threats of violence or other criminal means to harm the person, reputation, or property of any person - (b): Use obscene or profane language in communicating with any person - (c): Make a false accusation of fraud or other criminal conduct, or threaten to so accuse - (d): Communicate with a debtor in an attempt to collect without disclosing that the communication is from a debt collector - (e): Cause a telephone to ring repeatedly or continuously so as to annoy the debtor ### § 1788.11 — Telephone practices No debt collector shall: - (a): Place a telephone call to the debtor after 9 PM or before 8 AM local time at the debtor's location without prior consent - (b): Telephone the debtor more than 2 times in a 7-day period, exclusive of debt collection calls during which actual contact is made (under the 2023 amendment by SB 616 — verify current text; federal Reg F's 7-in-7 rule applies via § 1788.17) - (c): Place a telephone call to the debtor without disclosing the collector's name and that the call is from a debt collector - (d): Place a telephone call to the debtor's employer except to verify employment ### § 1788.12 — Third-party communication restrictions No debt collector shall communicate with a person other than the debtor regarding a consumer debt unless: - (a): The person is the debtor's attorney - (b): The communication is for the purpose of locating the debtor and the collector does not reveal the purpose or the existence of the debt ### § 1788.13 — Prohibited false/misleading representations No debt collector shall: - (a): Make false representation that the debt collector is vouched for, bonded, affiliated with, or is an instrument of a government - (b): Make false representation of the character, extent, or amount of the debt - (c): Make false representation that the debt collector is an attorney at law - (d): Make false representation that the non-payment of a debt will result in arrest or imprisonment - (e): Communicate false credit information - (f): Represent a legal proceeding has been or is about to be commenced when that is false - (g): Falsely represent the character, extent, or amount of consumer credit charges or fees ### § 1788.14 — Prohibited debt-collection conduct No debt collector shall: - (a): Collect any amount (including interest, fees, charges, or expenses incidental to the principal obligation) unless authorized by the agreement creating the obligation or permitted by law - (b): Use a business, company, or organization name other than the true name of the debt collector's business when collecting or attempting to collect a consumer debt - (c): Collect a fee from the debtor for services rendered on behalf of the creditor ### § 1788.15 — Harassment and unlawful conduct in collection No debt collector shall: - (a): Use any form of communication that simulates legal process or that is designed to make it appear that it is from a court or government agency - (b): Threaten to communicate to any person, except through proper legal proceedings, the fact that the debtor does not pay debts ### § 1788.16 — Communication to the public No debt collector shall: - (a): Send communications that are designed to embarrass the debtor or that communicate the existence of the debt to the public - (b): Use any form of communication that simulates a telegram or emergency message ## The FDCPA incorporation layer — § 1788.17 As noted above, § 1788.17 imports 15 U.S.C. §§ 1692b–1692j directly. For California practice, this means: - Every § 1692c communication violation is a Rosenthal violation - Every § 1692d harassment violation is a Rosenthal violation - Every § 1692e false-representation violation is a Rosenthal violation - Every § 1692f unfair-practice violation is a Rosenthal violation - Every § 1692g validation failure is a Rosenthal violation - Reg F violations (12 CFR pt 1006) are incorporated too — because § 1788.17 imports § 1692k's application to "any regulation prescribed" under Title 15 ## Civil liability — § 1788.30 **§ 1788.30(a)**: Any debt collector who violates any provision of the Rosenthal Act is liable to the debtor for: - (1): **Actual damages** sustained as a result of the violation, including damages for embarrassment, humiliation, mental anguish, and emotional distress (subject to reasonable proof) - (2): **Statutory damages** of at least $100 and up to $1,000 per violation (not per action — unlike FDCPA's per-action $1,000 cap) **§ 1788.30(b)**: In a class action, statutory damages up to $500,000 or 1% of the debt collector's net worth, whichever is less. **§ 1788.30(c)**: Any debt collector who violates the Rosenthal Act shall be liable to the debtor for **reasonable attorney's fees** and costs as determined by the court. **California advantage over FDCPA**: The Rosenthal Act's statutory damages are **per violation**, not per action. Multiple violations by the same collector (e.g., 10 abusive phone calls) = $1,000 × 10 = up to $10,000 in statutory damages, compared to FDCPA's single $1,000 cap. ### § 1788.30(d) — Bona fide error defense A debt collector is not liable for a violation that is: - Not intentional; AND - Resulted from a bona fide error; AND - The collector maintained procedures reasonably adapted to avoid the specific error ## Statute of limitations — § 1788.30(f) **1 year** from the date of the last violation. **California UCL extension**: Bus. & Prof. Code, § 17208 provides a 4-year SOL for UCL claims. Every Rosenthal Act violation is also an "unlawful" prong predicate. For violations between 1–4 years old, plead UCL. ## Sample Rosenthal Act counterclaim ``` THIRD CAUSE OF ACTION — California Rosenthal Fair Debt Collection Practices Act (Cal. Civ. Code, §§ 1788–1788.33) [N]. Plaintiff/Counter-Defendant is a "debt collector" within the meaning of Cal. Civ. Code, § 1788.2(c) in that it regularly engages in debt collection in the ordinary course of its business. [N+1]. The alleged debt is a "consumer debt" within the meaning of Cal. Civ. Code, § 1788.2(f) — an obligation arising from a personal credit-card account incurred primarily for personal, family, or household purposes. [N+2]. Plaintiff/Counter-Defendant violated the Rosenthal Act in the following ways: (a) By falsely representing the character, extent, and amount of the alleged debt, in violation of Cal. Civ. Code, § 1788.13(b) and § 1788.17 (incorporating 15 U.S.C. § 1692e(2)); (b) By bringing a legal proceeding after the statute of limitations under CCP § 337 had expired — falsely representing that a legal proceeding was about to be legitimately commenced — in violation of Cal. Civ. Code, § 1788.13(f) and § 1788.17 (incorporating 15 U.S.C. § 1692e(5)); (c) By attempting to collect amounts not authorized by the agreement creating the debt, in violation of Cal. Civ. Code, § 1788.14(a) and § 1788.17 (incorporating 15 U.S.C. § 1692f(1)); (d) By failing to provide a validation notice complying with 15 U.S.C. § 1692g(a), as required by Cal. Civ. Code, § 1788.17. [N+3]. As a direct and proximate result, Counter-Claimant suffered actual damages including [describe]. Counter- Claimant is entitled to statutory damages of $100 to $1,000 per violation under Cal. Civ. Code, § 1788.30(a)(2), and reasonable attorney's fees and costs under Cal. Civ. Code, § 1788.30(c). ``` ## Comparison: Rosenthal Act vs. FDCPA | Feature | FDCPA | Rosenthal Act | |---------|-------|---------------| | Covers original creditors | No | Yes | | Statutory damages | $1,000 per action | $100–$1,000 per violation | | Attorney's fees (consumer wins) | Yes | Yes | | SOL | 1 year | 1 year (+ UCL 4 years) | | UCL "unlawful" predicate | Yes (via § 17200) | Yes | | Federal vs. state | Federal | California only | | Bona fide error defense | Yes | Yes (§ 1788.30(d)) | ## Cross-references - `ca-consumer-debt` SKILL — main bundle - `references/fdcpa.md` — federal companion statute - `references/cdcla.md` — CDCLA licensing requirement - `references/fees-consumer-debt.md` — fee-shifting detail - leginfo.legislature.ca.gov (canonical): https://leginfo.legislature.ca.gov/faces/codes_displaySection .xhtml?sectionNum=1788.&lawCode=CIV