Showing 32 posts from 2019.
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 ›
New York's Highest Court to Determine Whether Voluntary Discontinuance Revokes Acceleration of Debt
We previously discussed the State of New York's Appellate Division for the Second Judicial Department's holding that a lender's voluntary discontinuance of a judicial foreclosure action by itself, whether by court order or stipulation of the parties, is insufficient to evidence a lender's intent to revoke the acceleration of the entire mortgage debt. Now, the legal landscape in New York might drastically change given the Court of Appeals' grant of leave to appeal in Freedom v Engel. More ›
New Edition of 50 State Guide on Student Loan Servicing Regulations Now Available
An important resource for financial services compliance professionals just received a new update. The Third Edition of the 50 State Guide on Student Loan Servicing Regulations—a quick reference guide and resource for student loan servicers regarding the regulations specific to the industry, along with pending legislation, litigation, and court rulings—now also includes language of the rules implementing state student loan servicer laws. More ›
Case to Watch: U.S. Supreme Court Decision Provides Florida Homeowner Grounds to Challenge Excessive Fees for Code Violations
Cities and towns have become increasingly aggressive in their efforts to avoid blight resulting from vacant and foreclosed properties and enforce the state and local sanitary codes. At what point does a valid code violation enforcement effort become an excessive fee or receiver lien, motivated by cities and towns' need to raise revenue? Is there any way for a property owner to challenge a city's or town's $500/day fine for failing to correct minor code violations? A state court in Florida is currently hearing just such a case. More ›
Topics
- ACA
- ACA International
- Amicus Brief
- Anti-Discrimination Policy
- Appellate Decisions
- Appointment Power
- Appraised Value
- Arbitration
- Arbitration Rule
- Article III Standing
- ATDS
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- Auto-Dialer
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- Bankruptcy
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- behavioral economics
- Biden Administration
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- Bitcoin
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- California
- California Consumer Financial Protection Law
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- California Court of Appeal
- California Department of Financial Protection and Innovation
- Car Dealership
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- CFPA
- CFPB
- Chapter 11 Bankruptcy
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- Circuit Split
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- Class Action
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- Class Certification
- Climate Change
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- Constitutional Claims
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- D.C. Circuit Court of Appeals
- Damages
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- Department of Education
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- District of Columbia
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- Dodd-Frank
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- Due Process Clause
- ECOA
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- Education
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- Eighth Amendment
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- Eleventh Amendment
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- Employee Benefits
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- Equal Opportunity Act
- European General Data Privacy Regulation
- Eviction
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- Executive Order
- Exempt Status
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- FACTA
- Fair and Accurate Credit Transactions Act
- Fair Credit Billing Act
- Fair Credit Reporting Act
- Fair Debt Collection Practices Act
- Fair Employment and Housing Act
- Fair Lending
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- Fairness in Class Action Litigation Act of 2017
- FCBA
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- Federal
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- Federal Housing Administration
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- Federal Rules of Civil Procedure
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- Fifth Amendment
- Fifth Circuit Court of Appeals
- Final Rule
- Financial CHOICE Act
- Financial Registration
- Financial Regulatory
- Financial Risk
- FinTech
- First Amendment
- First Circuit Court of Appeals
- Florida
- Florida Supreme Court
- For-Profit Student Loans
- Forbearance
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- Foreclosure
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- Fourteenth Amendment
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- FTC
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- hacking
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- HealthTech
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- Hobbs Act
- HUD
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- Hunstein
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- Illinois
- Illinois Consumer Fraud and Deceptive Business Practices Act
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- Illinois Student Loan Bill of Rights
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- Investigation
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- Judicial Estoppel
- Kathleen Kraninger
- Kentucky
- kickbacks
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- Landlord and Tenant
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- Legal Standing
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- Louisiana
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- Marijuana
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- Maryland
- Massachusetts
- Massachusetts Appeals Court
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- Material Misrepresentation
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- Medical Debts
- Medical Expenses
- Medical Marijuana
- Minnesota
- Monetary Damages
- Mortgage
- Mortgage Acceleration
- Mortgage Debt
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- Motion to Dismiss
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- New York
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- NMLS
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- North Carolina Consumer Finance Act
- North Dakota
- Notice of Proposed Rule Making
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- Obama Administration
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- Origination
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- Pennsylvania
- Personal Jurisdiction
- Post-Discharge-Communications
- PPP
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- Preemption
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- Private Colleges and Universities
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- Private Student Loans
- Property Value
- Proposed Legislation
- Real Estate Settlement Act
- Redlining
- referral fees
- Regulated Entities
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- Regulation
- Regulation X
- Regulatory
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- Regulatory Relief
- Remote Working
- Residential Foreclosure
- RESPA
- Reverse Mortgage
- Revocation Claims
- Revocation of Election to Accelerate
- Rhode Island
- Rhode Island Supreme Court
- Richard Cordray
- RICO
- Right of Redemption
- Right to Cure
- Right to Cure Notice
- Right to Reinstate
- Risk Management
- Robocalls
- Rohit Chopra
- S.A.F.E. Mortgage Licensing Act
- Safe-Harbor Provision
- Sanitary Codes
- SCOTUS
- Second Circuit Court of Appeals
- Securities & Exchange Commission
- Separation of Powers
- Settlement Conference
- Seventh Circuit Court of Appeals
- Sixth Circuit Court of Appeals
- Social Media
- Standard of Proof
- Statute of Limitations
- Statutory Damages
- Statutory Interpretation
- Stimulus
- Student Loans
- Students
- Supreme Court of the United States
- Tax
- Tax Implications
- Tax Lien
- TCPA
- Telephone Consumer Protection Act
- Texas
- Texting
- Third Circuit Court of Appeals
- TILA
- Trump
- Trump Administration
- Truth in Lending Act
- U.S. Constitution
- U.S. Department of Housing and Urban Development
- UCC
- UDAAP
- Unauthorized Use
- Undue Hardship
- Unfair and Deceptive Practices
- Unfair Competition
- Uniform Commercial Code
- United States Treasury
- Unsolicited Advertisement
- Usury Laws
- Utah
- Video Conferencing
- Virginia
- Virtual Currency Business Act (VCBA)
- Voluntary Discontinuance
- Voluntary Dismissal
- Washington D.C.
- Wisconsin
- Wisconsin Consumer Act