Presented by Joshua R.I. Cohen Federal Consumer Protection 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 TCPA Telephone Consumer Protection Act 47 U.S.C. § 227, 46 C.F.R. § 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 TCPA Exemptions 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 TCPA 227(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 TCPA 227(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 TCPA 227(b)(3): Private Right of Action (A)Enjoin such action (B)The greater of actual damages or $500 for EACH violation If violation is willful OR known, 3x (B): $1,500 PER VIOLATION!

Copyright 2014 Joshua RI Cohen TCPA 227(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 TCPA Suits 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 TCPA Resources NCLC – Federal Deception Law

Copyright 2014 Joshua RI Cohen CROA Credit Repair Organization Act 15 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 CROA Restrictions 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 CROA Requirements Disclosures Contract 3-day Rescission Period No Advance Payments

Copyright 2014 Joshua RI Cohen CROA Remedies 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 ECOA Equal Credit Opportunity Act 15U.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 ECOA Incidental consumer credit Definition: – 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 ECOA Remedies – §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 FCRA Fair Credit Reporting Act 15 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 FCRA Claims 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 FCRA Claims 1681n – negligence 1691o – willful – Knowing, intentional, or reckless disregard of the law

Copyright 2014 Joshua RI Cohen FCRA Claim 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 FCRA Claim 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 FCRA Remedy 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