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Deceptive Trade Practices Enforcement in Private Student Loans. Dino Tsibouris Tsibouris & Associates, LLC. Deceptive Trade Practices: FTC Act. Consumer protection statute Enforced by the Federal Trade Commission

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deceptive trade practices enforcement in private student loans

Deceptive Trade PracticesEnforcement in Private Student Loans

Dino Tsibouris

Tsibouris & Associates, LLC

deceptive trade practices ftc act
Deceptive Trade Practices:FTC Act
  • Consumer protection statute
  • Enforced by the Federal Trade Commission
  • Section 5(a): "unfair or deceptive acts or practices in or affecting commerce ...are...declared unlawful."
  • 15 U.S.C. Sec. 45(a)(1))
deceptive trade practices ftc act1
Deceptive Trade Practices:FTC Act
  • "Unfair" practices are defined as those that "cause[] or [are] likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition" (15 U.S.C. Sec. 45(n)).
deceptive trade practices ftc act2
Deceptive Trade Practices:FTC Act
  • Privacy Violations:
    • Deception when a company fails to comply with its own privacy policy or security claims
    • Unfair practices that caused substantial injury, not reasonably avoidable by consumers
deceptive trade practices ftc act3
Deceptive Trade Practices:FTC Act
  • Marketing Representations:

Deception:

    • Using names, seals, logos, or other representations similar to those of government agencies
    • Using promotions like gift cards, credit cards, and sweepstakes prizes

to distract

deceptive trade practices ftc act4
Deceptive Trade Practices:FTC Act
  • Collection Practices:
    • Consumers expect debt collection contacts to be accurate
    • Actions based on inaccurate information (including failing to confirm accuracy) can be considered false or misleading and constitute deceptive acts or practices
deceptive trade practices ftc act5
Deceptive Trade Practices:FTC Act
  • Collection Practices:
    • Excessive collection calls without verifying information provided by lender
    • Not resolving disputes
    • Not forwarding updated information to credit bureaus
    • Fees not allowed in the loan
    • Fees in violation of state law
deceptive trade practices state law

Deceptive Trade Practices:State Law

Florida Statutes Title XXXIIIChapter 501

501.204  Unlawful acts and practices.–

Unfair methods of competition, unconscionable acts or practices,

and unfair or deceptive acts or practices

deceptive trade practices state law1

Deceptive Trade Practices:State Law

Florida Statutes Title XXXIIIChapter 501

501.204  Unlawful acts and practices.–

“Due consideration and great weight given to interpretations of the Federal Trade Commission Act”

student loan express

Student Loan Express

Silver State Helicopters: Failed trade school

12-18 month course

$69,900 tuition per student

2700 students, 34 schools, 17 states

Bankrupt in 2008

student loan express1

Student Loan Express

Private loans

Over 50% of borrowers received no certification

“Business plan destined to fail”

Should lender be liable to forgive

balances?

student loan express2

Student Loan Express

State claims involving the FTC Holder Rule

Banks which make purchase money loans containing the notice will be subject to all claims and defenses which the consumer could assert against the seller.

student loan express3

Student Loan Express

NOTICE

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE

DEBTOR HEREUNDER.

student loan express4

Student Loan Express

State AG’s claimed a violation of state law and Section 5 of the FTC Act to not include this language

Claimed that if a seller arranges direct loan financing, can’t accept proceeds of the loan as payment for a sale, unless any loan contract has the provision

student loan express5

Student Loan Express

Lender potentially responsible if it has "referring relationships" with schools

Potential payment refund/cancellation of debt

student loan express6

Student Loan Express

Multistate AG settlement forgiving $112M of balances

Up to 75% of a borrower’s balance

Citibank – forgave balances in 2008

KeyBank not yet determined

deceptive trade practices ny law

Deceptive Trade Practices:NY Law

SLATE Act

No logos on solicitations appearing to be from the federal government or the student's current lender

No fake checks/false rebates

No iPods, gift cards, etc.

deceptive trade practices ny law1

Deceptive Trade Practices:NY Law

SLATE Act

No Referral gifts to friends of the borrower

No false/misleading loan comparisons

No sample rates/benefits only available to small percentage of borrowers unless disclosed

Guaranty borrower benefits survive

sale of the loan

deceptive trade practices higher education opportunity act
Deceptive Trade Practices:Higher Education Opportunity Act
  • Section 140
  • Preventing Unfair and Deceptive Private Educational Lending Practices and Eliminating Conflicts of Interest