(a) In general.
(1) Subject to paragraph (2), a private
entity shall be excluded from the definition of a debt collector,
pursuant to the exception provided in section 803(6), with respect
to the operation by the entity of a program described in paragraph
(2)(A) under a contract described in paragraph (2)(B).
(2) Paragraph (1) shall apply
if—
(A) a State or district attorney establishes,
within the jurisdiction of such State or district attorney and with
respect to alleged bad check violations that do not involve a check
described in subsection (b), a pretrial diversion program for alleged bad
check offenders who agree to participate voluntarily in such program
to avoid criminal prosecution;
(B) a private entity, that is subject
to an administrative support services contract with a State or district
attorney and operates under the direction, supervision, and control
of such State or district attorney, operates the pretrial diversion
program described in subparagraph (A); and
(C) in the course of performing duties
delegated to it by a State or district attorney under the contract,
the private entity referred to in subparagraph (B)—
(i) complies with
the penal laws of the State;
(ii) conforms with the terms of the contract and directives of the
State or district attorney;
(iii) does not exercise independent prosecutorial discretion;
(iv) contacts any alleged
offender referred to in subparagraph (A) for purposes of participating
in a program referred to in such paragraph—
(I) only as a result of any determination
by the State or district attorney that probable cause of a bad check
violation under State penal law exists, and that contact with the
alleged offender for purposes of participation in the program is appropriate;
and
(II) the alleged
offender has failed to pay the bad check after demand for payment,
pursuant to State law, is made for payment of the check amount;
(v) includes
as part of an initial written communication with an alleged offender
a clear and conspicuous statement that—
(I) the alleged offender may dispute the validity of any alleged
bad check violation;
(II) where the alleged offender knows, or has reasonable cause to
believe, that the alleged bad check violation is the result of theft
or forgery of the check, identity theft, or other fraud that is not
the result of the conduct of the alleged offender, the alleged offender
may file a crime report with the appropriate law enforcement agency;
and
(III) if the alleged
offender notifies the private entity or the district attorney in writing,
not later than 30 days after being contacted for the first time pursuant
to clause (iv), that there is a dispute pursuant to this subsection,
before further restitution efforts are pursued, the district attorney
or an employee of the district attorney authorized to make such a
determination makes a determination that there is probable cause to
believe that a crime has been committed; and
(vi) charges only fees in connection
with services under the contract that have been authorized by the
contract with the State or district attorney.
6-1700.2
(b) Certain checks excluded. A check is described in this subsection if the check involves, or
is subsequently found to involve—
(1) a postdated check presented in connection
with a payday loan, or other similar transaction, where the payee
of the check knew that the issuer had insufficient funds at the time
the check was made, drawn, or delivered;
(2) a stop payment order where the issuer
acted in good faith and with reasonable cause in stopping payment
on the check;
(3) a
check dishonored because of an adjustment to the issuer’s account
by the financial institution holding such account without providing
notice to the person at the time the check was made, drawn, or delivered;
(4) a check for partial
payment of a debt where the payee had previously accepted partial
payment for such debt;
(5) a check issued by a person who was not competent, or was not
of legal age, to enter into a legal contractual obligation at the
time the check was made, drawn, or delivered; or
(6) a check issued to pay an
obligation arising from a transaction that was illegal in the jurisdiction
of the State or district attorney at the time the check was made,
drawn, or delivered.
(c) Definitions. For purposes of this
section, the following definitions shall apply:
(1) The term “State or district attorney”
means the chief elected or appointed prosecuting attorney in a district,
county (as defined in section 2 of title 1, United States Code), municipality,
or comparable jurisdiction, including State attorneys general who
act as chief elected or appointed prosecuting attorneys in a district,
county (as so defined), municipality or comparable jurisdiction, who
may be referred to by a variety of titles such as district attorneys,
prosecuting attorneys, commonwealth’s attorneys, solicitors, county
attorneys, and state’s attorneys, and who are responsible for the
prosecution of State crimes and violations of jurisdiction-specific
local ordinances.
(2)
The term “check” has the same meaning as in section 3(6) of the Check
Clearing for the 21st Century Act.
(3) The term “bad check violation” means
a violation of the applicable State criminal law relating to the writing
of dishonored checks.
[15 USC 1692p. As added
by act of Oct. 13, 2006 (120 Stat. 2004).]
