(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:
(a)Any actual damage sustained by the consumer as a result of the failure;
(b)(I) In the case of any action by an individual, additional damages as the
court may allow, but not to exceed one thousand dollars;
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(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:
(a) Any actual damage sustained by the consumer as a result of the failure;
(b) (I) In the case of any action by an individual, additional damages as the
court may allow, 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.
(2) 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 reasonable attorney fees as
may be determined by the court.
(3) 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 subsection (1)(b)(I) of this section, the
frequency and persistence of noncompliance by the debt collector or collection
agency, the nature of noncompliance, and the extent to which noncompliance was
intentional;
(b) 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.
(4) 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.
(5) A private action to enforce any liability created by this section must be
brought in any court of competent jurisdiction within one year from the date on
which the violation occurs.
(6) 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
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.
(7) The policy of this state is not to award double damages under this article
16 and the federal 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.
(8) 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
subsection (1) of this section.
(9) 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.
(10) There shall be no private cause of action under this section for any
alleged violation of 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.
(11) (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 24-30-202.4.
(b) Repealed.