NY State Senate Bill 2013-S7349

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
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Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 13, 2014	referred to judiciary

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2013-S7349 (ACTIVE) - Details

See Assembly Version of this Bill:: A9053
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§213, 3012, 3215, R3016 & R3211, add §§214-f, 306-d & 7515, CPLR

2013-S7349 (ACTIVE) - Summary

Enacts the "consumer credit fairness act"; establishes a 3 year statute of limitations for commencement of a cause of action arising out of a consumer credit transaction where the defendant is a purchaser, borrower or debtor; establishes a notice of lawsuit which must be mailed to the defendant in such a cause of action; establishes certain requirements for the complaint in such an action

2013-S7349 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7349

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to consumer credit transactions

PURPOSE OF BILL:

This bill would strengthen consumer protections in consumer debt
collection proceedings.

SUMMARY OF PROVISIONS OF BILL:

The bill would require that the complaint in consumer credit actions
provide the name of the original creditor, the last four digits of the
original account number, the date and amount of the last payment, a
chain of title of the account, and a breakdown of the amount that the
plaintiff seeks to collect. The bill also requires that a copy of the
contract be attached to the complaint.

The bill would reduce the statute of limitations on consumer credit
actions from six years to three years. The bill would also bar debt
collectors from collecting debts on which the statute of limitations
has expired.

It would require that an additional notice of a pending consumer
credit action be mailed to the defendant by the clerk of the court.

This is required in New York City and the bill would adopt this
requirement statewide.

The bill would permit defendants in consumer credit actions to raise
improper service as a defense in their answer and preserve that
defense for trial without having to file a separate motion to dismiss
within 60 days as under current law.

To prevent the entry of default judgments on claims which have no
merit, the bill would require applications for default judgments in
consumer credit actions to include specific pleading requirements.
These include an affidavit by the original creditor of the facts
constituting the debt, the default in payment, the sale or assignment
of the debt, and the amount due at the time of sale or assignment;
(ii) for each subsequent assignment or sale of the debt to another
entity, an affidavit of sale of the debt by the debt seller, completed
by the seller or assignor; and (iii) an affidavit of a witness of the
plaintiff, which includes a chain of title of the debt, completed by
the plaintiff or plaintiffs witness. The bill will also require that
applications for default judgments in consumer credit actions to
include a statement that after reasonable inquiry, the creditor has
reason to believe that the statute of limitations has not expired.

JUSTIFICATION:

There have been serious concerns reported about the growing problem of
abusive debt collection practices including filing suit on debts-that
are too old to be sued on, are a result of identity theft or are debts
that have been paid or otherwise discharged. Other reported concerns
include lack of notice to the defendant of the law suit resulting in a


default judgment against the defendant without a requirement to
produce proof of the debt sued on.

Abusive debt collection lawsuits exploit current gaps in our state's
civil procedure laws and rules. The proposed legislation helps to fill
those gaps. In doing so, this legislation will protect all consumers,
and will particularly help ameliorate some of the forms of economic
abuse, including identity theft, suffered by domestic violence victims
at the hands of their abusers.

At a hearing on economic abuse as a form of domestic abuse, held on
December 5, 2012, by the New York State Assembly Committees on
Judiciary and Codes, civil legal service providers, domestic violence
prevention advocates and the Office of Court Administration
highlighted the insidious and pervasive nature of various forms of
economic abuse perpetrated by abusers in the family violence context
to exercise power and control over their victims and their finances.
The types of abuse cited included incurring debt in the survivor's
name through false statements or coercion, perpetrating identity theft
or otherwise incurring debt without the survivor's knowledge.
Witnesses at the hearing cited this legislation as important and
helpful to ameliorating economic abuse suffered by domestic abuse
survivors.

This legislation requires statewide institution of additional notice
requirements that are presently in place in New York City. There is a
significant and documented problem with faulty service that results in
default judgments with serious life-altering ramifications.  Without
notice, defendants do not appear in court, and debt buyers easily
obtain default judgments. These judgments are enforced by freezing
people's bank accounts and garnishing their wages, hampering their
ability to then pay for basic necessities such as food, utilities,
medication and housing. These judgments appear on people's credit
reports, making it close to impossible for them to secure housing or
employment, or to take out a loan. The provisions of this bill would
protect all consumers and domestic abuse survivors in particular, by
ensuring that New Yorker's receive actual notice of debt collection
actions.

To ensure that default judgment applications in debt collection
lawsuits are evaluated on the merits, this bill also requires court
papers to include more information about the debt sued upon. This
would ensure that all New Yorkers will be better able to identify the
debt or account on which they are being sued. There are many debts
that result from identity theft or mistaken identity and, in other
situations the defendant may not recognize the debt as theirs from the
minimal information provided on the initial filing of legal papers and
may therefore not respond. We learned from the hearing on economic
abuse as a form of domestic abuse, that this legislation will be
particularly important for domestic violence survivors as it will help
them identify the debt and assert defenses in cases involving debts
they did not voluntarily incur but that were incurred by their abusers
in the survivor's name.

This legislation will reduce the statute of limitations for consumer
credit actions from six to three years. Reducing the statute of
limitations requires creditors to file their claims while memories are


fresh and records are still available. States with three year statutes
of limitation include: Arizona, Arkansas, Delaware, Kansas, Louisiana,
Maryland, Mississippi, Montana, and the District of Columbia.
Pennsylvania has a two-year statute of limitation, In response to the
now common practice of selling time-barred debt this bill would also
extinguish the right to collect the debt after the statute of
limitation has expired. States with similar requirements include
Wisconsin and Mississippi.

Debt collection actions are rife with poor service and default
judgments that are obtained after the statute of limitations have
expired. To address this problem, the bill will require that
applications for default judgments in consumer credit actions include
a statement that the creditor has reason to believe that the statute
of limitations has not expired and it will protect defendants from
unknowingly waiving the legitimate defense that a debt is past the
statute of limitations or that they were improperly served.

This legislation will benefit all consumers and for domestic violence
survivors, it will go a long way toward helping break the perfect
cycle of violence and domestic abuse that enables perpetrators of
domestic abuse to exercise control over their victims and their
finances in a manner that prevents the victim from leaving a dangerous
relationship or forces them to return to it.

LEGISLATIVE HISTORY:

2013-14; A.2678/S.2454 - Passed Assembly/S. Judiciary
2011-12; A.633/S.677-A- Assembly Calendar/S. Judiciary
2010; A.7558-A/S.4398-A - Passed Assembly/S. Finance
2009; A.7558-A/S.4398-A - Passed Assembly/S. Codes

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

EFFECTIVE DATE:

January 1, after becoming law. Section three of the bill, which
shortens the statute of limitations, will take effect 150 days after
becoming law.

2013-S7349 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7349

                            I N  S E N A T E

                              May 13, 2014
                               ___________

Introduced  by  Sen.  SAVINO  -- (at request of the Attorney General) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Judiciary

AN ACT to amend the civil practice law and rules, in relation to consum-
  er credit transactions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "consumer credit fairness act".
  S 2. Subdivision 2 of section 213 of the civil practice law and rules,
as  amended  by  chapter  709 of the laws of 1988, is amended to read as
follows:
  2. an action upon a contractual obligation or  liability,  express  or
implied,  except  as  provided  in section two hundred thirteen-a OR TWO
HUNDRED FOURTEEN-F of this article or article 2 of the  uniform  commer-
cial code or article 36-B of the general business law;
  S  3.  The  civil  practice  law  and rules is amended by adding a new
section 214-f to read as follows:
  S 214-F. CERTAIN ACTIONS ARISING OUT OF CONSUMER  CREDIT  TRANSACTIONS
TO  BE COMMENCED WITHIN THREE YEARS. AN ACTION ARISING OUT OF A CONSUMER
CREDIT TRANSACTION WHERE A PURCHASER, BORROWER OR DEBTOR IS A  DEFENDANT
MUST  BE COMMENCED WITHIN THREE YEARS, EXCEPT AS PROVIDED IN SECTION TWO
HUNDRED THIRTEEN-A OF THIS ARTICLE OR ARTICLE 2 OF THE  UNIFORM  COMMER-
CIAL  CODE  OR ARTICLE 36-B OF THE GENERAL BUSINESS LAW. WHEN THE PERIOD
WITHIN WHICH AN ACTION MAY BE COMMENCED UNDER THIS SECTION HAS  EXPIRED,
THE RIGHT TO COLLECT CONSUMER CREDIT DEBT IS EXTINGUISHED AS WELL AS THE
REMEDY.
  FOR  PURPOSES  OF  THIS SECTION, "THE RIGHT TO COLLECT CONSUMER CREDIT
DEBT" SHALL MEAN ANY ATTEMPTS BY THE CREDITOR, THIRD PARTY PURCHASER, OR
OTHER AUTHORIZED THIRD PARTY TO COLLECT SUCH  DEBT  INCLUDING,  BUT  NOT
LIMITED TO, CALLS, MAIL OR OTHER ATTEMPTS TO COLLECT.
  S  4.  The  civil  practice  law  and rules is amended by adding a new
section 306-d to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05625-02-3

S. 7349                             2

  S 306-D. ADDITIONAL MAILING OF NOTICE IN AN ACTION ARISING  OUT  OF  A
CONSUMER  CREDIT TRANSACTION. 1. AT THE TIME OF FILING WITH THE CLERK OF
THE PROOF OF SERVICE OF THE SUMMONS AND COMPLAINT IN AN  ACTION  ARISING
OUT  OF A CONSUMER CREDIT TRANSACTION, THE PLAINTIFF SHALL SUBMIT TO THE
CLERK  A  STAMPED  ENVELOPE  ADDRESSED  TO THE DEFENDANT TOGETHER WITH A
WRITTEN NOTICE IN CLEAR TYPE OF NO LESS THAN TWELVE-POINT  IN  SIZE,  IN
BOTH ENGLISH AND SPANISH, AND CONTAINING THE FOLLOWING LANGUAGE:
                            NOTICE OF LAWSUIT
(DATE)

(NAME OF COURT)
(COUNTY)
(STREET ADDRESS, ROOM NUMBER)
(CITY, STATE, ZIP CODE)

(NAME OF DEFENDANT)
(ADDRESS OF DEFENDANT)

PLAINTIFF:__________________________________
DEFENDANT:__________________________________
NAME OF ORIGINAL CREDITOR, UNLESS SAME:______________________________
INDEX NUMBER:_______________________________

ATTENTION:  A  LAWSUIT  HAS BEEN FILED AGAINST YOU CLAIMING THAT YOU OWE
MONEY FOR AN UNPAID CREDIT CARD, MEDICAL, STUDENT LOAN OR OTHER DEBT.
YOU SHOULD GO TO THE COURT CLERK'S OFFICE AT THE ABOVE ADDRESS  AS  SOON
AS POSSIBLE TO RESPOND TO THE LAWSUIT. YOU MAY WISH TO CONTACT AN ATTOR-
NEY. IF YOU DO NOT HAVE AN ATTORNEY, HELP IS AVAILABLE AT THE COURT.
IF  YOU  DO  NOT  RESPOND TO THE LAWSUIT, THE COURT MAY ENTER A JUDGMENT
AGAINST YOU. ONCE ENTERED, A JUDGMENT IS GOOD AND CAN  BE  USED  AGAINST
YOU  FOR  TWENTY  YEARS,  AND  YOUR  MONEY,  INCLUDING A PORTION OF YOUR
PAYCHECK AND/OR BANK ACCOUNT, MAY BE TAKEN. ALSO, A JUDGMENT  WILL  HURT
YOUR  CREDIT  SCORE  AND  CAN AFFECT YOUR ABILITY TO RENT A HOME, FIND A
JOB, OR TAKE OUT A LOAN.
YOU CANNOT BE ARRESTED OR SENT TO JAIL FOR OWING A DEBT.
IT IS IMPORTANT THAT YOU GO TO THE COURT CLERK'S OFFICE LISTED ABOVE AND
BRING THIS NOTICE WITH YOU.  ADDITIONAL INFORMATION CAN BE FOUND AT  THE
COURT SYSTEM WEBSITE AT:  WWW.COURTS.STATE.NY.US
  2. THE FACE OF THE ENVELOPE SHALL BE ADDRESSED TO THE DEFENDANT AT THE
ADDRESS  AT  WHICH PROCESS WAS SERVED, AND SHALL CONTAIN THE DEFENDANT'S
NAME, ADDRESS (INCLUDING APARTMENT NUMBER) AND ZIP CODE. THE FACE OF THE
ENVELOPE ALSO SHALL STATE THE APPROPRIATE CLERK'S OFFICE AS  ITS  RETURN
ADDRESS.
  3.  THE  CLERK  PROMPTLY  SHALL  MAIL  TO  THE  DEFENDANT THE ENVELOPE
CONTAINING THE ADDITIONAL NOTICE SET FORTH IN SUBDIVISION  ONE  OF  THIS
SECTION.  NO DEFAULT JUDGMENT BASED ON THE DEFENDANT'S FAILURE TO ANSWER
SHALL BE ENTERED UNLESS THERE HAS BEEN COMPLIANCE WITH THIS SECTION, AND
AT LEAST TWENTY DAYS HAVE ELAPSED FROM THE DATE OF MAILING BY THE CLERK.
  S 5. Subdivision (a) of section 3012 of the  civil  practice  law  and
rules is amended to read as follows:
  (a)  Service  of  pleadings.  The  complaint  may  be  served with the
summons, EXCEPT THAT IN AN ACTION ARISING OUT OF A CONSUMER CREDIT TRAN-
SACTION, THE COMPLAINT SHALL BE SERVED WITH THE  SUMMONS.  A  subsequent
pleading  asserting  new or additional claims for relief shall be served
upon a party who has not appeared in the manner provided for service  of
a  summons.  In any other case, a pleading shall be served in the manner

S. 7349                             3

provided for service of papers generally. Service of an answer or  reply
shall  be made within twenty days after service of the pleading to which
it responds.
  S  6.    Rule  3016  of the civil practice law and rules is amended by
adding a new subdivision (i) to read as follows:
  (I) CONSUMER CREDIT TRANSACTIONS.  IN  AN  ACTION  ARISING  OUT  OF  A
CONSUMER  CREDIT  TRANSACTION WHERE A PURCHASER, BORROWER OR DEBTOR IS A
DEFENDANT, THE CONTRACT OR OTHER WRITTEN INSTRUMENT ON WHICH THE  ACTION
IS  BASED  SHALL BE ATTACHED TO THE COMPLAINT AND THE FOLLOWING INFORMA-
TION SHALL BE SET FORTH IN THE COMPLAINT:
  1. THE NAME OF THE ORIGINAL CREDITOR;
  2. THE LAST FOUR DIGITS OF THE ORIGINAL ACCOUNT NUMBER;
  3. THE DATE AND AMOUNT OF THE LAST PAYMENT;
  4. IF THE COMPLAINT CONTAINS A CAUSE OF ACTION  BASED  ON  AN  ACCOUNT
STATED,  THE  DATE THAT THE FINAL STATEMENT OF ACCOUNT WAS MAILED TO THE
DEFENDANT;
  5. AN ITEMIZATION OF THE AMOUNT SOUGHT, BY (I) PRINCIPAL; (II) FINANCE
CHARGE OR CHARGES; (III) FEES IMPOSED BY  THE  ORIGINAL  CREDITOR;  (IV)
COLLECTION  COSTS;  (V)  ATTORNEY'S  FEES;  (VI) INTEREST; AND (VII) ANY
OTHER FEES AND CHARGES. THE TERM "FINANCE CHARGE" MEANS A FINANCE CHARGE
AS DEFINED IN REGULATION Z, 12 C.F.R. S 226.4.
  6. WHETHER THE PLAINTIFF IS THE ORIGINAL CREDITOR. IF THE PLAINTIFF IS
NOT THE ORIGINAL CREDITOR, THE COMPLAINT SHALL STATE  (I)  THE  DATE  ON
WHICH  THE DEBT WAS ASSIGNED TO THE PLAINTIFF; AND (II) THE NAME OF EACH
PREVIOUS OWNER OF THE ACCOUNT  AND  THE  DATE  ON  WHICH  THE  DEBT  WAS
ASSIGNED TO THAT OWNER.
  7.  ANY  MATTERS  REQUIRED TO BE STATED WITH PARTICULARITY PURSUANT TO
RULE 3015 OF THIS ARTICLE.
  S 7. Subdivision (e) of rule 3211 of the civil practice law and rules,
as amended by chapter 616 of the laws of 2005, is  amended  to  read  as
follows:
  (e)  Number,  time  and waiver of objections; motion to plead over. At
any time before service of the responsive pleading is required, a  party
may  move  on one or more of the grounds set forth in subdivision (a) OF
THIS RULE, and no more than one such  motion  shall  be  permitted.  Any
objection  or  defense  based upon a ground set forth in paragraphs one,
three, four, five and six of subdivision (a)  OF  THIS  RULE  is  waived
unless  raised  either  by  such motion or in the responsive pleading. A
motion based upon a ground specified in paragraph two, seven or  ten  of
subdivision  (a) OF THIS RULE may be made at any subsequent time or in a
later pleading, if one is permitted; IN ANY ACTION OTHER THAN AN  ACTION
ARISING OUT OF A CONSUMER CREDIT TRANSACTION WHERE A PURCHASER, BORROWER
OR  DEBTOR  IS A DEFENDANT, an objection that the summons and complaint,
summons with notice, or notice of petition and petition was not properly
served is waived if, having raised such an objection in a pleading,  the
objecting  party  does not move for judgment on that ground within sixty
days after serving the pleading, unless the court extends the time  upon
the  ground of undue hardship. The foregoing sentence shall not apply in
any proceeding under subdivision one or two  of  section  seven  hundred
eleven  of  the real property actions and proceedings law. The papers in
opposition to a motion based on improper service shall contain a copy of
the proof of service, whether or  not  previously  filed.  An  objection
based  upon a ground specified in paragraph eight or nine of subdivision
(a) OF THIS RULE is waived if a party moves on any of  the  grounds  set
forth  in subdivision (a) OF THIS RULE without raising such objection or

S. 7349                             4

if, having made no objection under subdivision (a) OF THIS RULE,  he  or
she does not raise such objection in the responsive pleading.
  S  8.  Subdivision  (f)  of section 3215 of the civil practice law and
rules, as amended by chapter 453 of the laws of 2006, is amended  and  a
new subdivision (j) is added to read as follows:
  (f)  Proof.  On any application for judgment by default, the applicant
shall file proof of service of the  summons  and  the  complaint,  or  a
summons  and  notice  served  pursuant to subdivision (b) of rule 305 or
subdivision (a) of rule 316 of this chapter,  and  proof  of  the  facts
constituting the claim, the default and the amount due by affidavit made
by  the party, or where the state of New York is the plaintiff, by affi-
davit made by an attorney from the office of the  attorney  general  who
has  or  obtains knowledge of such facts through review of state records
or otherwise. Where a verified complaint has been served, it may be used
as the affidavit of the facts constituting the claim and the amount due;
in such case, an affidavit as to the default shall be made by the  party
or  the  party's attorney. IN AN ACTION ARISING OUT OF A CONSUMER CREDIT
TRANSACTION, IF THE PLAINTIFF IS NOT THE ORIGINAL CREDITOR,  THE  APPLI-
CANT  SHALL  INCLUDE:  (I)  AN AFFIDAVIT BY THE ORIGINAL CREDITOR OF THE
FACTS CONSTITUTING THE DEBT, THE DEFAULT IN PAYMENT, THE SALE OR ASSIGN-
MENT OF THE DEBT, AND THE AMOUNT DUE AT THE TIME OF SALE OR  ASSIGNMENT;
(II) FOR EACH SUBSEQUENT ASSIGNMENT OR SALE OF THE DEBT TO ANOTHER ENTI-
TY,  AN  AFFIDAVIT  OF SALE OF THE DEBT BY THE DEBT SELLER, COMPLETED BY
THE SELLER OR ASSIGNOR; AND (III) AN  AFFIDAVIT  OF  A  WITNESS  OF  THE
PLAINTIFF, WHICH INCLUDES A CHAIN OF TITLE OF THE DEBT, COMPLETED BY THE
PLAINTIFF  OR  PLAINTIFF'S  WITNESS.  When  jurisdiction  is based on an
attachment of property, the  affidavit  must  state  that  an  order  of
attachment  granted in the action has been levied on the property of the
defendant, describe the property and state its value. Proof  of  mailing
the  notice  required by subdivision (g) of this section, where applica-
ble, shall also be filed.
  (J) A REQUEST FOR A DEFAULT JUDGMENT ENTERED BY  THE  CLERK,  MUST  BE
ACCOMPANIED BY AN AFFIDAVIT BY THE DEBT COLLECTOR (WHO MAY BE THE PLAIN-
TIFF  OR PLAINTIFF'S ATTORNEY) STATING THAT AFTER REASONABLE INQUIRY, HE
OR SHE HAS REASON TO BELIEVE THAT THE STATUTE  OF  LIMITATIONS  HAS  NOT
EXPIRED.
  S  9.  The  civil  practice  law  and rules is amended by adding a new
section 7515 to read as follows:
  S 7515. CONFIRMATION OF AN AWARD BASED ON  A  CONSUMER  CREDIT  TRANS-
ACTION.  IN ANY PROCEEDING UNDER SECTION 7510 OF THIS ARTICLE TO CONFIRM
AN AWARD BASED ON A CONSUMER CREDIT TRANSACTION, THE  PARTY  SEEKING  TO
CONFIRM  THE  AWARD  SHALL  PLEAD THE ACTUAL TERMS AND CONDITIONS OF THE
AGREEMENT TO ARBITRATE. THE PARTY SHALL ATTACH TO ITS PETITION  (1)  THE
AGREEMENT  TO  ARBITRATE;  (2)  THE  DEMAND FOR ARBITRATION OR NOTICE OF
INTENTION TO ARBITRATE, WITH PROOF OF SERVICE; AND (3)  THE  ARBITRATION
AWARD,  WITH PROOF OF SERVICE. IF THE AWARD DOES NOT CONTAIN A STATEMENT
OF THE CLAIMS SUBMITTED FOR ARBITRATION, OF THE CLAIMS RULED UPON BY THE
ARBITRATOR, AND OF THE CALCULATION OF FIGURES USED BY THE ARBITRATOR  IN
ARRIVING AT THE AWARD, THEN THE PETITION SHALL CONTAIN SUCH A STATEMENT.
THE  COURT  SHALL NOT GRANT CONFIRMATION OF AN AWARD BASED ON A CONSUMER
CREDIT TRANSACTION UNLESS THE PARTY SEEKING TO  CONFIRM  THE  AWARD  HAS
COMPLIED WITH THIS SECTION.
  S 10. This act shall take effect on the first of January next succeed-
ing  the  date  on which it shall have become a law, except that section
three of this act shall take effect on  the  one  hundred  fiftieth  day
after this act shall have become a law.

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Senate Bill S7349

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

co-Sponsors

2013-S7349 (ACTIVE) - Details

2013-S7349 (ACTIVE) - Summary

2013-S7349 (ACTIVE) - Sponsor Memo

2013-S7349 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7349

Share this bill

Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Judiciary Committee

co-Sponsors

Tony Avella

Terry Gipson

Ruth Hassell-Thompson

Bill Perkins

2013-S7349 (ACTIVE) - Details

2013-S7349 (ACTIVE) - Summary

2013-S7349 (ACTIVE) - Sponsor Memo

2013-S7349 (ACTIVE) - Bill Text download pdf

Comments