The Second Circuit’s recent decision in Hooks v. Forman[ref]Hooks v. Forman, Holt, Eliades and Ravin, LLC, 12-3639 (2nd. Cir. May 29, 2013). A copy of the decision is available here.[/ref] has received quite a bit of attention since it was handed down May 29. The case held that a disclosure made pursuant to 1692g(a) violated the Fair Debt Collection Practices Act when it instructed the recipient of the letter that if she wished to dispute the debt, she could only do so in writing. The decision recognized that under section 1692g, some disputes can be verbal. It also recognized that under other sections (particularly…
Some relief has come to those using preview dialers to make telemarketing or informational calls to cell phones. The court in Nelson v. Santander[ref]Nelson v. Santander Consumer USA, Inc., 2013 U.S. Dist. LEXIS 40799 (W.D. Wis. Mar. 8, 2013)[/ref] vacated its opinion of March 8, which held that preview dialers were automatic telephone dialing systems subject to regulation by the Telephone Consumer Protection Act [ref]47 U.S.C. 227[/ref]. The order was entered on June 7, on a joint motion and stipulation made by the parties. The case was dismissed, with prejudice, that same day. The order vacating the March 8 opinion is here. While…
The City of Boston will be forwarding calls from residents to the Consumer Financial Protection Bureau when the callers have questions or complaints about financial products and services, the city announced yesterday. Those who call the city’s 24-hour hotline at (617) 635-4500 with questions about such matters as credit cards, mortgages and loans will be connected with the CFPB, who will provide answers and process complaints. The CFPB screens complaints and contacts companies on behalf of consumers, requesting feedback from companies within 15 days and a resolution within 60 days.
Yesterday, Lawyers.com reported that Papa John’s, the national pizza chain, had reached an agreement to settle for $16.5 million a Telephone Consumer Protection Act class-action claim. If approved by the court, the settlement will put an end to an interesting lawsuit involving the TCPA’s prior express consent requirements. The TCPA proscribes the use of an “Automatic Telephone Dial System” to call a person’s cell phone, without first obtaining the called party’s “prior express consent” to receive such a call. Enacted in 1991, many courts, including the Ninth Circuit Court of Appeals, have found that the sending of text messages to cell phones using an…
If you are a member of the American Bar Association, check out its CLE Premier Speaker Series at www.ambar.org/freecle. Every month the series provides ABA members a free CLE seminar. This Monday has a pretty special presentation Ethical Tools to Diffuse Incivility. According to the registration page, the ABA is requesting 1.5 of Ethics CLE Credits in many states. It’s a great topic and a good way to fulfill your Ethics CLE.
The Consumer Financial Protection Bureau has issued rules on The Credit Card Accountability Responsibility and Disclosure Act (“CARD Act”) to make it easier for stay-at-home spouses and partners to get credit cards by allowing card issuers to consider household income in their applications. The 2009 CARD Act requires that card issuers determine if a consumer is able to repay a debt before opening an account or increasing a limit. Until this new regulation, the issuer was only able to consider the individual applicant’s independent income. Card issuers have six months to comply with the new regulation. The CFPB’s press release is…
The FTC has ordered the California company Skyy Consulting, Inc., which provides robocalling services to its clients as CallFire, to pay a $75,000 fine and stop all illegal telemarketing robocalls as part of a settlement between the parties. The Federal Trade Commission had charged Skyy Consulting with violating the Telemarketing Sales Rule (TSR), by helping its clients place robocalls to consumers without their written consent. The TSR does not prohibit calls that provide informational recorded messages, such as flight information, school delays, etc., nor does it apply to calls regarding the collection of a debt. Intended to stop unwanted sales…
I will be attending a joint FTC-CFPB roundtable on data integrity in debt collection on June 6, at the FTC’s Satellite Building Conference Center in Washington, D.C. Consumer advocates, industry experts, regulators and more will attend the roundtable to discuss what information is available to collectors and how it is being used in the debt collection process. Panelists will also examine the verification of disputed debts under the FDCPA and FCRA; debt collection litigation and time-barred debts.
In today’s FDCPA Decision of the Day, a United States District Court for the District of New Jersey held that an attorney’s letterhead, standing alone, is not an implied threat of litigation. The Plaintiff, a New Jersey resident, claimed that the defendant, a Georgia law firm, violated section 1692e(5) of the FDCPA (prohibiting “[a] threat to take any action that cannot legally be taken or that is not intended to be taken”) when it sent him a dunning letter. The basis for the claim was that the Georgia law firm could not file a lawsuit because none of its attorneys were licensed in New Jersey. “It is…
The Consumer Financial Protection Bureau today released its Annual Report to Congress on the Fair Debt Collection Practices Act (“FDCPA”). The Report outlines the consumer complaints received by the Bureau and the Federal Trade Commission relating to FDCPA practices, the Bureau’s efforts in supervising persons subject to the FDCPA, its enforcement, education and outreach efforts and its research and policy initiatives. A chapter is also devoted to the cooperative efforts of the Bureau and the FTC. Technology has played a role in making debt collection more efficient and compliant, the Report found. At the same time, “abuses still exist and the industry remains a top…
Earlier this month, Reuters reported that several state attorneys general are engaged in a coordinated investigation of the defaulted debt sales practices by some of the nation’s largest banks. Last fall, the American Banker reported that Mississippi Attorney General Jim Hood was looking at JPMorgan Chase’s debt sales practices. The Federal Trade Commission released its study last month entitled The Structure and Practices of the Debt Buying Industry. And then there are remarks recently delivered by Richard Cordray, Director of the Consumer Financial Protection Bureau (“Bureau”), at the first meeting of its Consumer Advisory Board: [A] creditor may decide to sell [a defaulted debt] to or contract with…
Today’s Decision of the Day is Vartanian v. Portfolio Recovery Associates, a Fair Credit Reporting Act (“FCRA”) opinion from the United States District Court for the Central District of California. The opinion examines the FCRA’s conflicting preemption provisions, § 1681t(b)(1)(F) and § 1681h(e), in the context of a claim arising from a person’s furnishing of information to a credit reporting agency. Section 1681t(b)(1)(F) can be read to preempt all state law claims, but at the same time others read § 1681h(e) as permitting state law claims based on willful or malicious conduct. Congress amended the FCRA in 1996 by adding § 1681t(b)(1)(F) to preempt “any state laws that imposed any ‘requirement or prohibition’…