(1) In addition to administrative enforcement pursuant to section 5-16-114 and subject to section 5-16-132 and the limitations provided by subsection (10) 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 16 or private child support collector, as defined in section 5-17-102 (9), who fails to comply with any provision of this article 16 or article 17 of this title 5, with respect to a consumer is liable to the consumer in an amount equal to the sum of:
Any actual damage sustained by the consumer as a result of the failure;
(I) In the case of any action by an individual, additional damages as the court mayallow, but not to exceed one thousand dollars;
(II) In the case of a class action, the amount for each named plaintiff as could be recovered under subsection (1)(b)(I) of this section and the 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 reasonable attorney fees as may be determined by the court.
In the case of any unsuccessful action brought under this section, the plaintiff shallbe liable to each defendant in an amount equal to that defendant's cost incurred in defending the action, together with reasonable attorney fees as may be determined by the court.
In determining the amount of liability in any action under subsection (1) of this section, the court shall consider, among other relevant factors:
In any individual action under subsection (1)(b)(I) of this section, the frequency andpersistence of noncompliance by the debt collector or collection agency, the nature of noncompliance, and the extent to which noncompliance was intentional;
In any class action under subsection (1)(b)(II) of this section, the frequency and persistence of noncompliance by the debt collector or collection agency, the nature of the 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.
A debt collector, private child support collector, as defined in section 5-17-102 (9),or collection agency may not be held liable in any action brought pursuant to this section if the debt collector or collection agency shows by a preponderance of evidence that the violation was not intentional or grossly negligent and the violation resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
A private action to enforce any liability created by this section must be brought inany court of competent jurisdiction within one year from the date on which the violation occurs.
No provision of this section imposing any liability shall apply to any act done oromitted in good faith in conformity with any advisory opinion of the administrator, notwithstanding that, after the act or omission has occurred, the opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
The policy of this state is not to award double damages under this article 16 and thefederal "Fair Debt Collection Practices Act", 15 U.S.C. sec. 1692 et seq. No damages under this section shall be recovered if damages are recovered for a like provision of said federal act.
Notwithstanding subsection (1) of this section, harassment of the employer or thefamily 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 subsection (1) of this section.
It shall be an affirmative defense to any action based upon failure of a debt collector,private child support collector, as defined in section 5-17-102 (9), 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.
There shall be no private cause of action under this section for any alleged violationof section 5-16-125 (4)(a). Violations of section 5-16-125 (4)(a) may be prosecuted only through administrative enforcement pursuant to section 5-16-114.
(a) No provision of this section imposing any liability shall apply to any efforts by a state agency or state employee to recover money owed to the state as provided in section 24-30202.4.
(b) If the state controller, or a person he or she designates to recover money owed to the state, fails to comply with any provision of this article 16, the controller, or his or her designee, shall be subject to disciplinary action as specified in the rules promulgated by the executive director of the department of personnel pursuant to article 4 of title 24.
Source: L. 2017: (4) and (5) amended, (SB 17-216), ch. 285, p. 1579, § 5, effective June 1; entire article added with relocations, (HB 17-1238), ch. 260, p. 1090, § 1, effective August 9.
Editor's note: (1) This section is similar to former § 12-14-113 as it existed prior to 2017.
(2) Subsections (4) and (5) were numbered as § 12-14-113 (3) and (4), respectively, in SB 17-216 (see L. 2017, p. 1579). Those provisions were harmonized with this section as it appears in HB 17-1238.