(1) With respect to a transaction that is, gives rise to, or leads the consumer to believe will give rise to a consumer credit transaction, if the court as a matter of law finds:
The agreement or transaction to have been unconscionable at the time it was made, orto have been induced by unconscionable conduct, the court may refuse to enforce the agreement; or
Any term or part of the agreement or transaction to have been unconscionable at thetime it was made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable term or part, or so limit the application of any unconscionable term or part as to avoid any unconscionable result.
With respect to a consumer credit transaction, if the court as a matter of law findsthat a person has engaged in, is engaging in, or is likely to engage in unconscionable conduct in collecting a debt arising from that transaction, the court may grant an injunction and award the consumer any actual damages the consumer has sustained.
If it is claimed or appears to the court that the agreement or transaction or any termor part thereof may be unconscionable or that a person has engaged in, is engaging in, or is likely to engage in unconscionable conduct in collecting a debt, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the agreement or transaction or term or part thereof or of the conduct to aid the court in making the determination.
In applying subsection (2) of this section, consideration shall be given to each of thefollowing factors, among others, as applicable:
Using or threatening to use force or violence against the consumer or members of theconsumer's family;
Communicating with the consumer or a member of the consumer's family at frequentintervals or at unusual hours or under other circumstances so that it is a reasonable inference that the primary purpose of the communication was to harass the consumer;
Using fraudulent, deceptive, or misleading representations such as a communicationthat simulates legal process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law when it is not or threatening or attempting to enforce a right with knowledge or reason to know that the right does not exist;
Causing or threatening to cause injury to the consumer's reputation or economic status by:
Disclosing information affecting the consumer's reputation for credit worthiness withknowledge or reason to know that the information is false;
Communicating with the consumer's employer before obtaining a final judgment against the debtor, except, as permitted by statute, to verify the consumer's employment, to ascertain the consumer's whereabouts, or to request that the consumer contact the creditor;
Disclosing to a person, with knowledge or reason to know that the person does nothave a legitimate business need for the information, or in any way prohibited by statute, information affecting the consumer's credit or other reputation; or
Disclosing information concerning the existence of a debt known to be disputed bythe consumer without disclosing that fact;
(e) Engaging in conduct with knowledge that like conduct has been restrained or enjoined by a court in a civil action by the administrator against any person pursuant to the provisions on injunctions against fraudulent or unconscionable agreements or conduct contained in section 5-6-112.
If, in an action in which unconscionability is claimed, the court finds unconscionability pursuant to subsection (1) or (2) of this section, the court may award reasonable fees to the attorney for the consumer. If the court does not find unconscionability and the consumer claiming unconscionability has brought or maintained an action the consumer knew to be groundless, the court may award reasonable fees to the attorney for the party against whom the claim is made. In determining attorney fees, the amount of the recovery on behalf of the consumer is not controlling.
The remedies of this section are in addition to remedies otherwise available for thesame conduct under laws other than this code, but double recovery of actual damages may not be had.
For the purpose of this section, a charge or practice expressly permitted by this codeis not in itself unconscionable.
Source: L. 2000: Entire article R&RE, p. 1236, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-108, as it existed prior to 2000.
Cross references: For the "Colorado Fair Debt Collection Practices Act", see article 16 of title 5.