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The Rosenthal Act: The Ghost Language of WILLFULLY and KNOWINGLY

  • Jun 19 2013

The Rosenthal Fair Debt Collections Practices Act (hereinafter “RFDCPA”), at Cal. Civ. Code §1788.30, defines the penalty for violating its provisions, such as harassment.  The penalties are broken up into three categories.  Subsection (a) allows for actual damages, subsection (b) allows for statutory damages of $100.00 to $1,000.00 and subsection (c) grants the authority for recovery of attorney’s fees.

The damages section of the RFDCPA seems different from the Federal Fair Debt Collection Practices Act in that the statutory damages are a penalty for intent of the violating party.  This would imply that the RFDCPA is a strict liability statute with an added penalty assessed for intent.   This follows in line with case law interpreting the FDCPA as a strict liability statute. (Reichert v. National Credit Systems, Inc., (9th Cir. 2008) 460 F.3d 1002, 1004;   Clark v. National Credit & Collection Servs., Inc., (9th Cir. 2006) 460 F.3d 1162).  The FDCPA does not have an additional intent requirement articulated in its statutory damages provision.  The truth of the matter is that the RFDCPA is no different from the FDCPA in that they are both strict liability statutes; even as to the statutory damages component of the penalty statue, even though the RFDCPA seems to require an additional “willfully and knowingly” component to liability.

Let’s look at the code.  California Civil Code §1788.30(a) – (b) states:

“(a) Any debt collector who violates this title with respect to any debtor shall be liable to the debtor only in an individual action, and his liability therein to that debtor shall be in the amount equal to the sum of any actual damages sustained by the debtor as a result of the violation. (b) Any debt collector who willfully and knowingly violates this title with respect to any debtor shall, in addition to actual damages sustained by the debtor only in an individual action, and his additional liability therein to that debtor shall be for a penalty in such amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).”

A cursory reading of the statute does seem to require proof of an additional intent requirement for statutory damages.  However, that language is superfluous and unnecessary.  In fact, the statute would be interpreted exactly the same way with or without the willfully and knowingly language.  It’s best to see what willfully and knowingly means.

The court in People v. Bell was faced with the task of interpreting what willfully and knowingly meant.  (People v Bell, (1996) 45 Cal.App.4th 1030).  In People v. Bell the defendants were being charged with rent skimming per California Civil Code §890-§894.  The court explained that, “[t]he elements of a criminal rent skimming are: (l) in a two-year period (2) the defendant must have knowingly and willfully (3) as to five parcels (4) of residential property (5) engaged in rent skimming.” (Id. at 1042).

The court explained, “[t]he terms ‘knowingly’ and ‘willfully’ are defined in section 7 of the Penal Code. While the rent skimming legislation is contained in the Civil Code, Penal Code definitions are persuasive in determining the intent of the Legislature in using those terms.” (Id. at 1042; People v. Taylor, (1992) 7 Cal.App.4th 677, 692).  “The use of the words knowingly and willfully in a penal statute usually define a general criminal intent.” (Id. at 1043; People v. Dollar, (1991) 228 Cal.App.3d 1335, 1340).  The court defined willfully and knowingly as requiring “only that the illegal act or omission occur ‘intentionally,’ without regard to motive or ignorance of the act’s prohibited character” and “knowledge that the facts exist which bring the act or omission within the provisions of this code.” (Id. at 1043).  To put this in English, the violator must only intend to do the acts which make up the violation and know they are doing them.

Here is why the willfully and knowingly language is unnecessary.  A Plaintiff has to prove that the violator intended to do the acts which make up the violation and know they are doing them in order to prove liability generally and to escape the RFDCPA’s version of the Bona Fide Error Defense.  (An explanation of the Bona Fide Error can be found in my article entitled BONE-FIDE ERROR IS NOT ALL IT’S CRACKED UP TO BE).  The lesson is that the willfully and knowingly language adds nothing to a Plaintiff’s burden of proof.

The problem most debtor’s, and for that matter most debtor attorney’s, face is that debt collectors and their attorney’s like to use the words willingly and knowingly as a shield claiming that a violator must willfully and knowingly violate the RFDCPA.  This is not the case.  All that must be shown is that a violator willfully and knowingly engaged in the acts which made up the violation.  There is a huge difference.

Here is an example:  Suppose a debt collector calls a debtor to collect a debt after receiving a letter of representation because the account was coded incorrectly.  If we apply the incorrect interpretation that a violator must willfully and knowingly violate the RFDCPA then there would be no violation.  The debt collector called because of an error in coding and did not intend to violate the RFDCPA.  However, applying the correct interpretation a violation clearly occurred.  The debt collector clearly intended to call the debtor.  It doesn’t matter whether he intended to violate the RFDCPA or not.

As a debtor, it is very important that you retain an attorney that understands the nuances of debt collection law.  As you can see, the law isn’t always as it seems and you will need a lawyer who knows the law and how it is interpreted.  I hope this helps.

Posted in: Collection Harassment, Debt Collections, Debt Settlements