Presented by Joshua R.I. Cohen Federal Consumer Protection Laws.
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Transcript of Presented by Joshua R.I. Cohen Federal Consumer Protection Laws.
Presented by Joshua R.I. Cohen
Federal ConsumerProtection Laws
Copyright 2014 Joshua RI Cohen
Topics• TCPA – Telephone Consumer Protection Act• ECOA – Equal Credit Opportunity Act• CROA – Credit Repair Organization Act• FCRA – Fair Credit Reporting Act
Copyright 2014 Joshua RI Cohen
Not Discussed• FDCPA – Fair Debt Collection Practices Act• TILA – Truth in Lending Act
Copyright 2014 Joshua RI Cohen
TCPATelephone Consumer Protection Act47 U.S.C. § 227, 46 C.F.R. § 64.1200• Passed in 1991• Covers:
– Unsolicited faxes– Prerecorded messages– Telephone solicitations at inconvenient times– Nationwide do-no-call rule– Junk faxes– Text messaging
Copyright 2014 Joshua RI Cohen
TCPAExemptions• Tax exempt non-profit organizations
– For-profits calling on behalf of non-profit• Company specific do-not-call applies
• Pre-existing relationship– But not debt collection to cell phones
• Calls to non-residential lines– Junk fax still applies here
Copyright 2014 Joshua RI Cohen
TCPA227(b)(1)(B): it is unlawful“to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)”
Copyright 2014 Joshua RI Cohen
TCPA227(b)(1)(C): it is unlawful“to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless—”
227(b)(1)(D): it is unlawful“to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.”
Copyright 2014 Joshua RI Cohen
TCPA227(b)(3): Private Right of Action(A) Enjoin such action(B) The greater of actual damages or $500 for EACH
violationIf violation is willful OR known, 3x (B):
$1,500 PER VIOLATION!
Copyright 2014 Joshua RI Cohen
TCPA227(c)• protection from violation of do-not-call list
– Violation if more than one call received within 12 month period
• Private right of action 227(c)(5)– Same damages as 227(b)
Copyright 2014 Joshua RI Cohen
TCPASuits• Actual damage need not be proven for statutory
damages• Strict liability statute• Damages PER CALL!• No fee shifting (no atty fees)
– Bootstrap state UDAP for fees• File in Fed or State court• SOL = 4 years
Copyright 2014 Joshua RI Cohen
TCPAResources• NCLC – Federal Deception Law• www.TCPAlaw.com
Copyright 2014 Joshua RI Cohen
CROACredit Repair Organization Act15 U.S.C. § 1679• Covers Debt Relief Servicers IF representation of
credit improvement• Specifically covers express or implied:
– Improving any consumer’s credit record, history, or rating
– Providing advice and assistance to any consumer with regard to any such activity or service
• 501(c)(3) organizations exempt
Copyright 2014 Joshua RI Cohen
CROARestrictions• No upfront fees• No work prior to expiration of 3-day rescission period• No waiving of CROA provisions• No misrepresentations regarding credit
Copyright 2014 Joshua RI Cohen
CROARequirements• Disclosures• Contract• 3-day Rescission Period• No Advance Payments
Copyright 2014 Joshua RI Cohen
CROARemedies• CROA non-compliant contract is void• Actual damages, punitive, atty fees• SOL = 5 years• Federal claim
Resources• NCLC – Fair Credit Reporting
Copyright 2014 Joshua RI Cohen
ECOAEqual Credit Opportunity Act15U.S.C. § 1691, 12 C.F.R. § 1002• Prohibits Discrimination
– Race, Color, Religion, National origin, Sex, Marital status, Age, receipt of public assistance, or for exercising one’s rights
• Proscribes procedures for creditors– Disallowed factors, account closings, spousal
credit reporting, information limits, spousal co-sign requirements, and notice requirements
Copyright 2014 Joshua RI Cohen
ECOA• Covers credit transactions
– Deferred payment of a debt• Covered parties:
– Regularly extends, renews or continues credit– Regularly arranges for the above– Assignee of the originator of the above
• Exempt transactions– Public utility credit– Incidental consumer credit– Securities credit
Copyright 2014 Joshua RI Cohen
ECOA• Public utility credit – partial exemption for:
– Marital status info– Retention period for credit app
• Securities credit – partial exemption for:– Marital status– Spousal info– Sex– Co-signer restrictions– Credit reporting for both spouses– Retention period for credit app
Copyright 2014 Joshua RI Cohen
ECOAIncidental consumer creditDefinition:
– Primarily for personal, family, household purpose
– NOT pursuant to credit card account
– NOT subject to finance charge
– Under 4 installments
Partial Exemptions:– Marital status– Spousal info– Alimony, child support– Sex– Co-signer restrictions– Notice requirements– Credit reporting for
both spouses– Retention period for
credit app
Copyright 2014 Joshua RI Cohen
ECOARemedies – §1691e• Actual, punitive ($10k cap), atty fees, and equitable
relief• Fed or State court• SOL = 5 years
– 1 year after any agency enforcement action• No double dipping with FHA
Resources• NCLC – Credit Discrimination
Copyright 2014 Joshua RI Cohen
FCRAFair Credit Reporting Act15 U.S.C. § 1681, 16 C.F.R. § 680 • Consumer credit reports only• Regulates consume reporting agencies and reports
– Ensure maximum possible accuracy of information• Also covers furnishers
Copyright 2014 Joshua RI Cohen
FCRAClaims arise from improper reinvestigation• Consumer disputes with CRA• CRA forwards dispute to Furnisher• Furnisher response to dispute• CRA makes appropriate corrections• Turn around time is within 30 days
Copyright 2014 Joshua RI Cohen
FCRAClaims• 1681n – negligence• 1691o – willful
– Knowing, intentional, or reckless disregard of the law
Copyright 2014 Joshua RI Cohen
FCRAClaim against CRA• CRA failed to follow procedures to ensure maximum
possible accuracy• CR contained inaccurate entry• Consumer suffered injury• Injury caused, in part, by inaccuracy
Copyright 2014 Joshua RI Cohen
FCRAClaim against Furnishers• No claim for initially inaccurate information• Claim arises from furnishers failure to follow
reinvestigation procedures:– Conduct investigation of dispute– Review info provided by CRA– Report results to CRA– If info is incomplete/inaccurate, report to other
CRAs– Promptly take appropriate action
Copyright 2014 Joshua RI Cohen
FCRARemedy• SOL
– 2 years from date of discovery– 5 years from actual violation
• Damages– Actual– $1,000 Statutory (willful violation only)– Punitive (willful violation only)– Attorneys fees