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


Not Discussed• FDCPA – Fair Debt Collection Practices Act• TILA – Truth in Lending Act


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


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


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)”


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.”


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!


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)


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


TCPAResources• NCLC – Federal Deception Law• www.TCPAlaw.com

http://www.tcpalaw.com/


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


CROARestrictions• No upfront fees• No work prior to expiration of 3-day rescission period• No waiving of CROA provisions• No misrepresentations regarding credit


CROARequirements• Disclosures• Contract• 3-day Rescission Period• No Advance Payments


CROARemedies• CROA non-compliant contract is void• Actual damages, punitive, atty fees• SOL = 5 years• Federal claim

Resources• NCLC – Fair Credit Reporting


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


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


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


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


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


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


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


FCRAClaims• 1681n – negligence• 1691o – willful

– Knowing, intentional, or reckless disregard of the law


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


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


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

Presented by Joshua R.I. Cohen Federal Consumer Protection Laws.

Documents

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joshua ri cohen tcpa

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