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Federal Consumer Protection Laws - PowerPoint PPT Presentation


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

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federal consumer protection laws

Federal ConsumerProtection Laws

Presented by Joshua R.I. Cohen

topics
Topics
  • TCPA – Telephone Consumer Protection Act
  • ECOA – Equal Credit Opportunity Act
  • CROA – Credit Repair Organization Act
  • FCRA – Fair Credit Reporting Act
not discussed
Not Discussed
  • FDCPA – Fair Debt Collection Practices Act
  • TILA – Truth in Lending Act
slide4
TCPA

Telephone Consumer Protection Act

47 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
slide5
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
slide6
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)”

slide7
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.”

slide8
TCPA

227(b)(3): Private Right of Action

  • Enjoin such action
  • The greater of actual damages or $500 for EACH violation

If violation is willful OR known, 3x (B):

$1,500 PER VIOLATION!

slide9
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)
slide10
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
slide11
TCPA

Resources

  • NCLC – Federal Deception Law
  • www.TCPAlaw.com
slide12
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
slide13
CROA

Restrictions

  • No upfront fees
  • No work prior to expiration of 3-day rescission period
  • No waiving of CROA provisions
  • No misrepresentations regarding credit
slide14
CROA

Requirements

  • Disclosures
  • Contract
  • 3-day Rescission Period
  • No Advance Payments
slide15
CROA

Remedies

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

Resources

  • NCLC – Fair Credit Reporting
slide16
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
slide17
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
slide18
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
slide19
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
slide20
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
slide21
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
slide22
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
slide23
FCRA

Claims

  • 1681n – negligence
  • 1691o – willful
    • Knowing, intentional, or reckless disregard of the law
slide24
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
slide25
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
slide26
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