Consumer And Commercial Transactions - Digest of Bills

Digest of Bills - 1997

CONSUMER AND COMMERCIAL TRANSACTIONS

S.B. 97-24 Deceptive trade practices - use of term "optician". Makes it a deceptive trade practice for a person to claim, orally or in writing:

To be a "certified optician" or a "certified opticien" unless the person holds a current certificate of competence from the American Board of Opticianry; or
To be able to perform certain procedures, such as vision therapy, refractions, or keratometry, or any act that constitutes the practice of optometry or medicine, if such person is a certified optician and does not perform such procedures under the direction of someone who has supervisory authority.

States that no person may associate a service, product, or business name with the title "certified optician" unless he or she holds the described certificate of competence. Requires that certificates of competence be prominently displayed and made available for inspection by consumers and agents of the state of Colorado. Exempts licensed physicians and optometrists from these requirements and prohibitions.

APPROVED by Governor April 24, 1997
EFFECTIVE July 1, 1997

S.B. 97-155 Central indexing system - miscellaneous changes. Requires the secured party to sign any amendment that deletes collateral covered by a financing statement, termination statement, separate statement of assignment, or release of collateral. States that electronically filed amendments must include an electronic signature of the secured party that complies with procedures adopted by the filing officer. Allows an electronic signature to consist of an access code or other identifying word or number assigned by a filing officer.

States that a mortgage is effective as a financing statement even if it does not include the social security number or federal taxpayer identification number of the debtor.

States that any continuation statement filed after July 1, 1996, continues the perfection in all collateral listed on the filing. Provides that filing one continuation statement maintains the effectiveness of any financing statement that was filed in multiple locations if it names identical collateral.

Prohibits any person from filing a financing statement or amendment that adds collateral covered by a financing statement unless the debtor authorizes such filing in writing. States that a debtor, by signing a written security agreement, authorizes the secured party to file a financing statement and amendments covering collateral listed in such statement and any proceeds of such collateral. Sets forth penalties for violators.

Requires the signature of the secured party on an electronic filing if an amendment, termination statement, or statement of release of collateral deletes collateral covered by a financing statement. Provides procedures for such signatures. Does not require other filings of amendments, termination statements, assignments, and releases of collateral that are made electronically to include the signature of the secured party.

Empowers the central indexing system board to review ways to expand the amount of public information the system provides.

Authorizes filing officers to charge a filing party an additional $5 if such person uses a document that is not on a standard form established by the central indexing system board for filing purposes.

Eliminates the requirement that a continuation statement state that it is still effective.

APPROVED by Governor April 24, 1997
EFFECTIVE April 24, 1997

S.B. 97-213 Public trustees - indemnification when original evidence of debt is not provided in certain transactions. Provides that, in circumstances where liens on deeds of trust are to be fully or partially released, certain financial institutions may certify to the public trustee that the original evidence of debt is not being exhibited or produced. Stipulates that the financial institution shall indemnify the public trustee for any and all damages, costs, liabilities, and reasonable attorney fees incurred as a result of the action of the public trustee taken in accordance with such request for release without production or exhibition of the original evidence of indebtedness. Limits the proper venue for any action based on such indemnification to the county in which the public trustee receiving the certification is located. Clarifies that nothing in article 39 of title 38, Colorado Revised Statutes, concerning mortgages, deeds of trust, and other liens, shall be construed to waive the immunity of a public trustee pursuant to the Colorado governmental immunity act.

APPROVED by Governor June 3, 1997
EFFECTIVE September 1, 1997
NOTE: This act was passed without a safety clause. The act establishes an effective date of September 1, 1997. It shall take effect on that date unless a referendum petition is filed during the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution. If such a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.

S.B. 97-226 Telemarketing services - exemption from laws governing telemarketing fraud prevention of certain qualified telephone marketing service companies. Removes the provision excluding that portion of a telephone marketing service company's services performed on behalf of nonexempt sellers from such company's exemption from the definition "commercial telephone seller" or "seller" for purposes of the telephone fraud prevention statutes. Clarifies that nonexempt sellers must comply with the registration requirements and unlawful telemarketing prohibitions set forth in the statutes.

APPROVED by Governor May 21, 1997
EFFECTIVE May 21, 1997

H.B. 97-1194 Self-sufficiency for persons with disabilities - express warranties for wheelchairs. Requires wheelchair manufacturers to furnish consumers with an express warranty that extends for at least one year. States that a wheelchair shall be covered by a warranty having the same features as an express warranty if the manufacturer or dealer of the wheelchair fails to furnish an express warranty.

States that any nonconformity of the wheelchair shall be repaired by the manufacturer or any of the manufacturer's authorized dealers if the consumer reports the nonconformity and makes the wheelchair available for repair within the warranty period. Requires a manufacturer to respond to a dealer's request for authorization to make repairs within one business day after receipt of such request. Requires that such repairs be warranted for a period not less than the original warranty period.

Provides remedies for consumers when a nonconformity is not repaired after reasonable attempts to do so. States that remedies include a refund of payments made or receipt of a replacement wheelchair. States that such remedies are not exclusive. Requires a consumer to offer to return the wheelchair with the nonconformity when making a demand for a remedy and, in turn, requires the manufacturer or any of the manufacturer's authorized dealers to provide the refund or replacement within 30 days after receiving such offer. Requires consumers, upon receipt of a replacement wheelchair or a refund, to return the wheelchair with the nonconformity, if it is safe to do so, along with the documents necessary to transfer possession. Makes the remedy of a refund also available to any person who leases a wheelchair.

States that manufacturers must notify recipients and purchasers of a wheelchair of any known design defects in the wheelchair, and requires the manufacturers to replace any defective parts, free of charge, even after the one-year express warranty expires.

Prohibits any person from selling or leasing a wheelchair that has been returned because of a nonconformity without first making a full disclosure of the reasons for the return.

Provides that a manufacturer, dealer, or lessor who engages in conduct to delay a final repair required under warranty with the intention of requiring payment of the cost of repair to be made by a publicly funded program of assistance commits the crime of theft.

Requires that disputes among the manufacturers, lessors, or dealers concerning the enforcement of the consumer's rights be submitted to arbitration. States that, if a consumer waives his or her rights with respect to these provisions, such waiver shall be void as against public policy. Makes manufacturers and any of the manufacturer's authorized dealers who violate the new requirements liable for actual damages caused by the violation and reasonable attorney fees. Allows the consumer to be awarded collateral costs incurred as a result of such violation and punitive damages.

Requires the seller of any wheelchair to disclose prior to sale whether the wheelchair is new or used and whether any warranty applies to such wheelchair.

APPROVED by Governor April 30, 1997
EFFECTIVE July 1, 1997

H.B. 97-1243 Rates charged for certain transactions governed by the Uniform Consumer Credit Code - elimination of restrictions. On and after July 1, 1997, subject to the usury rate of 45% per annum, allows:

The credit service charge for consumer credit sales other than revolving charge accounts to be set at any rate contracted for and agreed to by the parties to such sale;
The credit service charge for revolving charge accounts to be set at any rate contracted for and agreed to by the parties;
The loan finance charge for supervised loans other than loans pursuant to revolving loan accounts to be set at any rate contracted for and agreed to by the parties to such loan;
The loan finance charge for a supervised loan pursuant to a revolving loan account to be set at any rate contracted for and agreed to by the parties, as applied to the unpaid balance of the principal; and
A lender for a revolving loan account secured by an interest in land, under certain conditions, to contract for and receive finance charges to open, use, or maintain such account, as a fixed amount, as a percentage of the credit limit, or on any other basis contracted for and agreed to by the parties in addition to finance charges at a periodic rate or rates.

Sets forth a noninclusive list of the types of charges that may be considered "interest" for purposes of such transactions. Provides for the repeal of said provisions on July 1, 2002.

VETOED by Governor June 5, 1997

H.B. 97-1284 Deceptive trade practices - unsolicited electronic communications. Makes the following acts involving electronic communications deceptive trade practices under the "Colorado Consumer Protection Act":

Soliciting a consumer residing in Colorado by fax without including a toll-free telephone number that a recipient may use to request no further transmissions.
Selling the consumer's fax number without either giving notice to the consumer or allowing the consumer the option of preventing the sale of the number.

Provides that soliciting a consumer by fax is not a deceptive trade practice if there is an existing business relationship between the seller and the consumer or if the fax transmission was requested or initiated by the consumer. States that this provision does not apply to the transmission of documents by a telecommunications provider providing transmission facilities.

APPROVED by Governor April 24, 1997
EFFECTIVE July 1, 1997

H.B. 97-1309 Charitable solicitations by telephone - required disclosures. Requires a paid solicitor who makes an oral solicitation to any person in Colorado by telephone regarding a charitable contribution to make the following oral disclosures during the telephone call:

A statement that the person soliciting such contribution is paid to make the solicitation;
The name of the telemarketing company that employs the paid solicitor;
The name and telephone number of the charitable organization on whose behalf the paid solicitor is making the solicitation;
A statement that the person to whom the solicitation is made has the right to rescind any agreement or pledge to make a charitable contribution within the time period specified by law;
A statement that the charitable contribution is not tax deductible, if such is the case; and
Upon request by a person from whom a charitable contribution is sought, the percentage of the contribution that will be paid to the charitable organization as a result of such person's contribution.

Requires a volunteer who makes an oral solicitation to any person in Colorado by telephone regarding a charitable contribution to disclose as part of the telephone call that the contribution is not tax deductible, if such is the case. Specifies that nothing in this act is to be construed as restricting, superseding, abrogating, or contravening any state or federal law or regulation regarding charitable solicitations.

APPROVED by Governor April 24, 1997
EFFECTIVE July 1, 1997