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An Emerging Trend in Favor of Student Loan Discharges in Bankruptcy

We recently reported on a Fifth Circuit decision that ruled some private, for-profit student loans are dischargeable in bankruptcy without a showing of undue hardship—something unusual and inconsistent with the widely-held belief that student loans are rarely discharged. It turns out that the Fifth Circuit's decision may have initiated a trend, for both private and federal loans. More ›

First Circuit Bankruptcy Panel Affirms “Gavel Rule” as Determinative of When a Bankruptcy Debtor’s Right of Redemption Terminates

The Bankruptcy Appellate Panel for the First Circuit has affirmed an earlier decision that concluded a borrower’s right to redeem terminates when the gavel falls at a foreclosure auction, and not when a deed is recorded. More ›

Governors of California and New York Announce Enhanced Consumer Protection Agendas for 2020

The Governors of California and New York have announced 2020 policy agendas that aim to expand consumer protections in response to what they describe as federal inaction, roll backs, and failures. We explore these proposed changes in detail below. More ›

Second Circuit Re-Emphasizes that FDCPA Claims Must Allege a Material Representation

The Second Circuit Court of Appeals recently took the opportunity to apply its 2018 holding in Cohen v. Rosicki, which had held that a consumer pursuing a claim for violation of Fair Debt Collection Practices Act (FDCPA) must allege facts sufficient to demonstrate a material misrepresentation. Materiality depends on "whether the false statement would frustrate a consumer's ability to intelligently choose his or her response," or if the representation "could mislead the debtor as to the negate and legal status of the underlying debt," or "could impede the consumer's ability to respond to or dispute collection." More ›

U.S. Supreme Court Resolves Circuit Split, Applies Occurrence Rule to FDCPA Statute of Limitations

Earlier this year, this blog reported on the Supreme Court's grant of certiorari in Rotkiske v. Klemm to resolve a split in circuits on the Fair Debt Collection Practices Act's (FDCPA) statute of limitations. This week, in an 8:1 opinion delivered by Justice Thomas, the Court concluded that the one-year statute of limitations in the FDCPA begins to run when the violation occurs, not when the violation is discovered. In doing so, they overturned rulings by the Fourth and Ninth Circuit, which had held the FDCPA's statute of limitations was subject to equitable tolling. More ›

Senate Hearing Panel Suggests a Bipartisan National Data Privacy Standard Could Include a Private Right of Action

A recent hearing at the Senate Committee on Commerce, Science, and Transportation explored the contours for a comprehensive and bipartisan federal data privacy law. Titled "Examining Legislative Proposals to Protect Consumer Data Privacy," the hearing featured an all-female panel of experts, including two former FTC leaders, and representatives from industry, academia, and consumer rights groups.

The panel discussion centered on current privacy legislation proposed by U.S. Senators Maria Cantwell (D-Wash.) and Roger Wicker (R-Miss.) which would provide consumers with greater security, transparency, choice and control over their personal information on- and off-line, and provide the Federal Trade Commission (FTC) with additional resources and authority to regulate. The hearing and written testimony are available on the Senate Committee's website. More ›

Fifth Circuit Rules For-Profit Student Loans Are Dischargeable Without Proof of "Undue Borrower Hardship"

Many student loan borrowers, lenders, and servicers operate under the presumption that student loans are generally not dischargeable in bankruptcy, absent an "undue hardship." That notion may no longer be a bright line rule, following a recent ruling by the Fifth Circuit Court of Appeals. The court ruled that certain private, for-profit student loans can in fact be discharged without the borrower providing a showing of undue hardship. This decision is particularly notable as private, for-profit student loans—including loans to cover increasing tuition costs not covered by federal loans, refinance loans, and consolidation loans—continue to see increased use. More ›

Lack of Standing Is Not Dead as a Defense to TCPA Actions

The Eleventh Circuit, in Salcedo v. Hanna, has concluded that receipt of a single unsolicited text, allegedly sent in violation of the Telephone Consumer Protection Act (the "TCPA"), does not constitute a sufficient "concrete injury" to confer standing under Article III of the United States Constitution. More ›

Consumer Law Regulatory Insights: CFPB Symposia Series Discusses How Behavioral Economics Can Inform Regulatory Action

On September 19, 2019, the Consumer Financial Protection Bureau (Bureau) hosted the second in a series of scheduled symposia. After the first symposium, we evaluated the panel discussions that focused on the term "abusive" and whether the Bureau should disclose parameters surrounding its interpretation of the term. The September 19 symposium addressed how behavioral law and economics can inform regulatory action. The discussion consisted of two panels: first, an academic discussion of behavioral economics, while a second panel discussed how behavioral economics can inform regulatory action, or lack thereof, in the consumer financial services field. More ›

FDCPA Claims Dismissed As a Result of Plaintiff's Bad Faith Bankruptcy Conduct

In Vedernikov v. Atl. Credit & Fin., Inc., (Vedernikov I), the U.S. District Court of New Jersey granted the defendant Midland Funding's motion to dismiss, which successfully argued the plaintiff should be estopped from bringing FDCPA claims that he failed to disclose during a bankruptcy action from which he had been discharged. After Midland Funding filed its motion to dismiss in Vedernikov I, the same Court also issued an Order to Show Cause and ultimately dismissed Vedernikov v. Oliphant Financial, LLC (Vedernikov II), another matter brought by the same plaintiff. More ›

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