Archives for August 2020

Nevada, which has taken a bold approach to collections during the COVID-19 pandemic, took yet another step that may add difficulty for collection agencies. Despite its moratorium on debt collection—which has since expired—Nevada’s Department of Business and Industry gave some leeway by allowing mortgage company employees to telework in order to prevent the spread of COVID-19. In a letter to the American Financial Services Association dated July 28, 2020, the Department confirms that the waiver allowing telework outside of a licensed location has expired.

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Nevada gave clear instructions about the debt collection moratorium. In March, Nevada officially ordered all non-essential businesses to close. Around the same time, the Financial Institutions Division confirmed that collection agencies are deemed non-essential. While initially the moratorium was set to extend until June 30, Nevada allowed collection agencies to re-open in one of its phased reopening declarations in early June. 

The guidance regarding work-from-home is a little less clear as it relates to financial institutions other than mortgage services, but it can be inferred that it applied to other financial institutions. In mid-March, the Division of Mortgage Lending issued a memorandum that provided provisional guidance to allow mortgage companies to work from home. This provision was set to expire on May 31, 2020, but according to the most recent letter was extended until the end of August. The letter seems to indicate that a similar provision was made for financial institutions that fall under the umbrella of the Financial Institutions Division, but insideARM was not able to locate a similar memorandum on Nevada’s COVID-19 notices page. The closest connection found was that the expiration of the Financial Institutions Division provision is the same as the original expiration date of the Department of Mortgage Lending provision.

The letter states:

As of current date, Nevada requires in-state principal brick and mortar office requirements, in addition to any business addresses outside of this state, as well as mortgage loan originators, and other operational staff be associated with respective offices. As you can imagine, earlier in the year at start of health crisis Divisions cooperatively with other state agencies, Divisions leadership, and Nevada stakeholders determined that clearance was needed in order to aid in efforts of preventing spreading of disease, and therefore granted approval for telecommuting work. However, the Financial Institution Division’s temporary waiver for telecommuting outside of the authorized licensed location expired May 31, 2020 and has not been extended. The Mortgage Lending Division’s provision for telecommuting was extended till 8/31/2020. 

insideARM Perspective

The phrasing of the letter—which is, admittedly, not very clear—seems to state that employees of licensees must be “associated” with a brick-and-mortar office, even if it is out-of-state. This could cause a problem with using work-from-home agents to collect debts in Nevada as many agencies have transitioned to a primarily remote workforce. Taking into account the wide range of regulatory requirements for businesses across all states, the layers of complexity continue. Some states are slowly opening up again, while others remain stringent with their closure requirements. An agency with a physical location in a certain area might not have the option of returning employees to their office location—does that mean that collecting in Nevada is out of the picture for them?

Nevada seems to ignore certain realities. Many employees, especially those who are high risk or live with others who are high risk, feel unsafe returning to a physical work location. Some employees may not have the option to return to a physical office due to childcare and schooling needs as many schools have opted for virtual learning to begin this school year. Opening and operating a business today looks very different than before, with requirements for sanitation, protective equipment, and social distancing. 

This issue is a great one to run by your legal counsel. It’s also a great one to communicate with Nevada’s regulators about. Sometimes, education is needed. If regulators don’t hear about the adverse impacts of their opinions and guidance, they may not realize what the issues are.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

For years, we have watched at the TCPA litigation machine has generated thousands of cases–and innumerable TCPA millionaires. From 2011 to 2016 the number of new filings absolutely skyrocketed.

2017 through 2019 saw marked drops in TCPA filings in federal court–but that is a bit deceptive as the percentage of TCPA class actions continued to climb and huge numbers of TCPA cases were submitted to arbitration.

(As always, thanks to our friends at WebRecon for the data.)

But now, finally, in August of 2020 we might be seeing the beginning of an ACTUAL decrease in overall filings. Through three quarters of this month, there have only been a total of 90 TCPA filings.

Total. That’s it.

By comparison, there were 246 TCPA filings in August 2019 and 650 filings in April 2020 alone.

Seems pretty clear that the Supreme Court’s acceptance of the big Facebook cert petition is weighing on the scale and keeping filings compressed. 

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That’s good news in the short term, but in the long term, the TCPA’s four-year statute of limitations promises a massive spike in litigation will follow the Supreme Court’s latest (big) TCPA ruling–if the Court goes the wrong way. 

Bottom line: do not let this lull in litigation lead to a feeling of confidence. TCPA compliance needs to remain a priority.

For now though, rest easy TCPAWorld and enjoy the relative silence. Unless you’re ViSalus.

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Editor’s Note: This article was originally published on Messer Strickler’s blog and is republished here with permission.

On August 18, 2020, New York federal judge Kenneth Karas upheld the Consumer Financial Protection Bureau‘s Petition to Enforce Civil Investigative Demand (CID) against a law firm rejecting the firm’s constitutional challenges to the agency’s investigation and its assertion of attorney-client privilege. The lawsuit, CFPB v. the Law Offices of Crystal Moroney PC, was brought in the U.S. District Court for the Southern District of New York as case No. 7:20-CV-3240. Judge Karas held that the law firm must turn over material to the CFPB, including recordings of calls with debtors, records of disputes and information about its clients.

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“What a long, strange trip it’s been,” the judge said before issuing findings at the end of a telephonic hearing which lasted over two hours. Rejecting the Moroney firm’s assertion that the mechanism for funding the CFPB was unconstitutional, Judge Karas held that Congress had the legal authority to fund the CFPB through the Federal Reserve. 

Judge Karas also upheld the legality of the CFPB’s civil subpoena despite the fact that it was issued prior to U.S. Supreme Court’s June 29, 2020 ruling in Seila Law LLC v. CFPB that the single-director structure of the Consumer Financial Protection Bureau is unconstitutional.  The judge said that forcing the bureau to go back to the drawing board in its investigation of the firm because of the Supreme Court’s ruling on the CFPB’s structure was not necessary and would only delay the CFPB’s fact-finding.

Judge Karas also rejected the firm’s contention that the information sought by the CFPB is protected from disclosure pursuant to the attorney-client privilege. He called the CFPB investigation “legitimate” and rejected what he characterized as the firm’s “broad” assertion of privilege.

This decision shows that constitutional challenges to the investigatory actions brought by the CFPB will not necessarily receive a warm welcome by federal courts. 

Want to search short and sweet summaries of all industry-related court decisions?
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MINNEAPOLIS, Minn. — DCM Services, LLC (“DCMS”) and its sister company, Forte, LLC, the industry leaders in data and contact management solutions for the estate and specialty receivables recovery market, celebrate 10 years of the nation’s only online probate claim filing solution, Probate Finder OnDemand. 

Probate Finder OnDemand was launched in 2010. Since then, its Software-as-a-Service (SaaS) model has grown to serve an expansive client base spanning several end-markets including financial services, auto, retail, credit unions, and healthcare. Probate Finder OnDemand allows users to access our patented Probate Finder® technology and automate robust and complex probate location, matching, and claim presentation processes.

Probate Finder OnDemand offers an intuitive and secure interface simplifying the user experience and making achieving results manageable. Since its inception, the application has continued to develop based on direct client feedback and user needs.

“Probate Finder OnDemand has experienced exceptional development and growth over the past 10 years,” said Tim Bauer, CEO of DCMS. “We have achieved this milestone through the innovation, talent, and the hard work of our team members as well as the strong partnerships we have formed with our clients. We are excited to continue to evolve this product as we move further into the future.”

DeAnna Busby-Rast, CBDO of DCMS remarked, “I am incredibly proud to reach this significant milestone, and I believe that the development of this product was a key advancement in cementing DCMS’ leadership in the estates industry. I am honored to work with our esteemed client base as we create solutions that help drive better results for their organizations.”

The 10-year celebration will be continued later this year when the Probate Finder OnDemand product team is scheduled to release a holistic enhancement of the user interface. Items included in this release are aimed to further enhance the user experience for Probate Finder OnDemand’s 200+ clients. 

About DCM Services

Minneapolis-based DCM Services is the industry leader in estate and specialty account resolution services, maximizing the value of client portfolios across financial services, healthcare, auto, retail, telecom, credit union, and utilities industries through innovation and performance. Its recovery solutions offer a full range of services from proprietary web-based solutions to full outsourcing, maintaining an unmatched spectrum of innovative solutions that increase recoveries, protect brand value, and enhance survivor relationships – with respect and sensitivity. For more information on all DCM Services’ offerings, please visit www.dcmservices.com.

Follow 1,000+ industry professionals, follow DCM Services on LinkedIn →

This article was originally posted on dcmservices.com, read the original article here.

Editor’s Note: This article was originally published on the Maurice Wutscher blog and is republished here with permission.

The U.S. Court of Appeals for the Second Circuit recently held that two plaintiff consumers failed to state a claim under the Fair Credit Reporting Act (FCRA) because the plaintiffs did not allege that they reported the alleged errors to a consumer credit reporting agency or that any such agency notified them of the alleged errors; and there is no private right of action arising from a direct dispute of credit reporting with only the furnisher.

A copy of the opinion in Sprague v. Salisbury Bank & Tr. Co. is available here. 

The plaintiffs took out a mortgage loan and later refinanced the mortgage, then defaulted. The bank sued and obtained a foreclosure judgment under Connecticut law in 2014. In 2016, one of the plaintiffs obtained his credit report, which showed that the foreclosed mortgage was still in default. He notified the bank, which “acknowledged that the loan had been erroneously reported as ‘open’” but that would be corrected and the loan reported as closed.

The plaintiffs later learned that the bank never corrected the error, and they sued. The amended complaint alleged that the bank “violated the FCRA by ‘negligently and willfully fail[ing] to perform a reasonable investigation and correction of inaccurate information,’ and … ‘by failing to correct errors in the information that it provided to credit reporting agencies’” after being notified of error.

The bank moved to dismiss the amended complaint, arguing that the duty to investigate “is only triggered after a furnisher of information receives notice of a dispute from a consumer reporting agency” and plaintiffs failed to allege that they received a notice of dispute from any consumer reporting agency.

Before the trial court ruled on the pending motion to dismiss, the plaintiffs moved to file a second amended complaint, which was allowed, and which the trial court eventually dismissed because it “failed to allege a statutory basis for [the] FCRA claim.”

The trial court concluded that “[t]o the extent [the plaintiffs] sought relief for a violation of 15 U.S.C. § 1681s-2(a), … they failed to state a claim because there is no private right of action under that subsection of the FCRA.” The trial court further concluded that to the extent the plaintiffs’ claim was “premised on violation of Section 1681s-2(b), … they again failed to state a claim because they (1) did not plead that they notified a CRA of the disputed accuracy of [the borrower’s] reports, and (2) did not allege that a CRA notified [the borrower] of the dispute.”

Concluding that any additional amendment would be futile, the trial court entered judgment for the bank and the plaintiffs appealed.

On appeal, the Court first affirmed the trial court’s conclusion that “the FCRA does not provide a private cause of action for violations of Section 1681s-2(a)[,]” which only “federal and state authorities” have standing to enforce, and which “details a furnisher’s responsibility to provide accurate information, including a duty to refrain from knowingly reporting inaccurate information, … and to correct information discovered to be inaccurate….”

Turning to subsection 1681s-2(b), the Court explained that it “outlines a furnisher’s duties following a dispute regarding the completeness or accuracy of a consumer’s credit report.”

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Once a furnisher receives a notice of dispute, it must conduct an investigation, review information provided by the consumer reporting agency, report the results to the consumer reporting agency, report any incomplete inaccurate information to other consumer reporting agencies to which the information was furnished, and, if the disputed information is “inaccurate or incomplete or cannot be verified after any reinvestigation[,]” the item or information must be modified, deleted or blocked from being reported further.

The Court reasoned that “[t]he statute is clear that the notice triggering these duties must come from a CRA, not the consumer” because subsection 1681i(a)(2) provides “that once a ‘consumer reporting agency receives notice of a dispute from any consumer … the agency shall provide notification of the dispute to any who provided any item of information in dispute[.]’”

In other words, the statute’s obligations are triggered only when the consumer disputes the information to a consumer reporting agency, which then gives notice to the “furnisher” that the consumer disputes the information.

Thus, the Court concluded, “Section 1681s-2(b) is not implicated simply because a consumer contacts a furnisher such as [the bank] regarding inaccuracies in her credit report.”

Because the plaintiffs did not allege that a consumer reporting agency notified them of their dispute or that they notified a consumer reporting agency of their dispute, the Court affirmed the trial court’s holding that they failed to state a claim under subsection 1681s-2(b).  

Finally, the Court held that the trial court did not err when it denied the plaintiffs’ leave to amend their complaint a third time because they “presented no basis for the court to ‘believe [they] could allege facts that could withstand a 12(b)(6) motion.’”

The trial court’s judgment was affirmed. 

Want short and sweet summaries of all industry-related court decisions?
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Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

Well here’s a huge ruling to start your week. A district court in Kansas issued a ruling yesterday reviewing the TCPA’s enigmatic ATDS definition and concluding that the statute only applies to equipment that calls randomly or sequentially and does not apply to dialers that call from a list of numbers.

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If you have been living under a TCPA rock for a year, the Circuit Courts of Appeal are badly split on the functionalities required of a dialer to qualify as an ATDS. And while most Circuits now either have binding appellate court rulings or a clear lean at the district court level, the Tenth Circuit Court of Appeals footprint has been a real ATDS mystery.

Until now.

In Hampton v. Barclays Bank Del., Case No. 18-4071-DDC-ADM, 2020 U.S. Dist. LEXIS 14529 (D. Ks. Aug. 13, 2020), the Court issued a tightly-written 29-page opinion fully analyzing the backdrop of the TCPA ATDS interpretation crisis and expressly “predicting” the course the Tenth Circuit Court of Appeals would adopt if/when it addresses the question. Its verdict? Random and sequential number generation is required.

Here is the critical language:

After considering the approaches other Circuits have taken, the court predicts our Circuit would take the same approach as the Seventh and Eleventh Circuits in Gadelhak and Glasser. These cases held that devices that exclusively dial numbers stored in a customer database do not qualify as autodialers for purposes of the TCPA.

The Hampton court gives several reasons for its conclusion:

• Glasser and Gadelhak “exhaustively analyze the statute’s text…[a]nd both reached the same conclusion: the phrase “using a random or sequential number generator” modifies both “store” and “produce.”
• Glasser and Gadelhak persuasively explain why Marks’s discussion about the TCPA exemptions doesn’t carry the day.
• The legislative history supports the Glasser reasoning
• Congressional failure to amend the statute in 2015—after the FCC’s 2015 Order—is not tacit approval of the FCC’s Order because “[c]ongressional failure to act does not necessarily reflect approval of the status quo.”

The Court also distinguished Morgan v. OnDeck—that horrifying case holding that even manual calls can be subject to the TCPA if a Defendant uses a dialer solution of the same brand name—as inapplicable since Plaintiff has not shown the system as a whole has the capacity to operate using the required ATDS functionalities. That’s always good to see.

In the end, the Court granted judgment to the defendant on the ATDS case. And while that’s a great result, one wonders whether it will end up being somewhat academic. Plaintiff will surely appeal and the Defendant’s prospects will ultimately turn on the outcome of Facebook—just like everyone else’s. One wonders whether it would have been more cost-effective to simply seek a stay, rather than battle on in the inevitable appeal. Nonetheless, this is a great and important win that will likely push the Tenth Circuit into the “light green” column on TCPAWorld.com’s ATDS heatmap. More to come.

Want short and sweet summaries of all industry-related court decisions?
The iA Case Law Tracker helps you do that in less time than it takes to pour your morning cup of coffee.

The news that California Assemblywoman Monique Limón is making efforts to make a “mini-CFPB” in California has bubbled to the surface several times over the past year or so. For a while, the mini-CFPB was included in California’s proposed budget but eventually was cut. Now, according to NPR and supported by the Assemblywoman’s tweet, Limón is seeking to get the mini-CFPB—known in long-form as the Department of Financial Protection and Innovation—on the legislative table before August 31, the legislative deadline.

The NPR article notes that “[t]he new agency would give the state broader power and ability to police aggressive debt collectors, credit repair schemes, predatory lenders and other shady financial practices. The mini-CFPB gained support from the Consumer Financial Protection Bureau’s Former Director Richard Cordray, who advised California’s Governor on the matter. 

insideARM Perspective

The thing that stands out about this issue is the short deadline to get something on the table—only about 13 days left. However, anyone who thinks that it’s impossible for California’s legislature to act so quickly should review the extremely condensed timeframe it took for the California Consumer Privacy Act (CCPA) to go from an old revived statute to being signed into law by the Governor. That process took about a week. In other words, anything is possible.

On Friday, California’s Attorney General Xavier Becerra (AG) announced that the Office of Administrative Law (OAL) approved the final regulations under the California Consumer Privacy Act (CCPA). The regulations went into effect immediately. The final regulations can be found here.

California’s governor signed the CCPA into law on June 28, 2018, after some controversy about how quickly the statute passed through the legislative process. The CCPA required the AG to implement regulations by July 1, 2020. The AG proposed these regulations in October 2019, which was followed by a comment period and several public forums. The final proposed regulations were submitted by the AG to the OAL on June 1, 2020.

In his office’s press release regarding the final regulations, the AG stated:

With these rules finalized, California breaks ground and leads the nation to protect and advance data privacy. These rules guide consumers and businesses alike on how to implement the California Consumer Privacy Act. As we face a pandemic of historic proportions, it is particularly critical to be mindful of personal data security.

insideARM Perspective

We’ll post more detail about the final regulations after we’ve had a chance to digest them. California led the charge of state consumer privacy laws, and many states followed. The National Conference of State Legislatures maintains a comprehensive rundown of the status of all related data privacy legislation, it can be found here. With the way things are going, there can be as many versions of privacy laws as there are states, leaving businesses with the tough (and expensive) requirement to make sure they are in compliance with the varying rules. A solution to this patchwork quilt of privacy laws is to have a Federal law that encompasses the issue.

TREVOSE, Pa. — Ralph Liberio, President & CEO announced today that NCB Management Services, a nationally respected Debt Buyer and Accounts Receivable Management (ARM) organization has signed a new, multi-year lease on a second, adjacent call center facility in Lincoln, Nebraska. This expansion will allow NCB to double its current capacity over the next several months. Liberio commented, “I am extremely excited and pleased to be in a position to bring good-paying call center jobs to the exceptional customer-centric workforce in Lincoln, NE”.  

“We are excited with the fact that the Lincoln community and its quality workforce will play such a vital part in our organization’s overall growth and diversification in future years,” said Liberio. He added, “As an Employee Stock Ownership Plan (ESOP) organization, this growth expansion will further allow our employees to take and maximize their ownership in their career with NCB as the ESOP allows employees to become beneficial owners of the stock of the company”. 

Mark Suleiman, CEO of Suleiman Holdings and property landlord commented saying, “NCB’s choice to expand its Lincoln office is an inspiring demonstration of their commitment to the City of Lincoln and the State of Nebraska. During these times of uncertainty, NCB’s leadership team has chosen to expand their operations and continue to offer quality employment opportunities in new facilities that complement their commitment to excellence. We are proud to call NCB a partner and are thrilled to see their growth story continue in Nebraska.”

Susan Richards, Chief Operating Officer for NCB commented, “We are excited to continue to offer robust employment opportunities in our Lincoln, NE facilities. We continue to expand at all levels of our employees and management, and as an ESOP company, every member of our team participates and benefits from our overall success”.

For more information about employment opportunities with NCB Management Services, Inc. please contact Kim Costick, Corporate Recruiter at kimberly.costick@ncbi.com or visit  www.ncbi.com/careers

About NCB Management Services

NCB Management Services, Inc. established in 1994 is headquartered in Trevose, PA with satellite offices in Jacksonville, Fla. and Sioux Falls, S.D. and Lincoln, Neb. NCB is a recognized Accounts Receivable Management (ARM) industry leader as well as a nationally respected Debt Buyer. NCB is an Employee Stock Ownership Plan (ESOP) organization. The NCB ESOP is a defined contribution plan that invests in the company’s stock. This is a company-funded retirement benefit to NCB employees.

DALLAS, Tex. — Malone Frost Martin, PLLC, a leading industry defense and compliance law firm, is very pleased to announce that industry veteran Loraine Lyons has joined the team as a Partner in the Compliance and virtual General Counsel services division.

Loraine joins Malone Frost Martin with over 20 years of experience exclusively in the accounts receivable management industry.  She previously served as General Counsel for a collection agency where she advised on business, employee-related, and collection matters, including compliance with federal and state consumer protection laws.

Loraine has represented the industry in lobby efforts, has served on ACA International’s Board of Directors, is a past president of ACA of Texas and past chair of ACA’s Members’ Attorney Program.  She has also been an invited speaker at ACA conferences, the Federal Trade Commission and Consumer Financial Protection Bureau roundtable discussion on debt collection and is a recipient of ACA International’s James K. Erickson Continuous Service Award.

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“I am excited to be working with the well-respected industry experts at Malone Frost Martin, PLLC,” Lyons said. “I look forward to supporting our clients and being a contributor to the industry.”

“Robbie, Xerxes, and I have all worked with Loraine over the years while she was in-house General Counsel.  We, and our clients, are fortunate to have her join the firm and utilize her skills and experience to provide virtual General Counsel and compliance services to them and represent the industry in various capacities” said Mike Frost, Partner at Malone Frost Martin, PLLC.  “Loraine will work closely with me, Heath Morgan and Tim Collins in the Compliance and virtual General Counsel division and will support Robbie, Xerxes, and the litigation defense team.”

“We feel honored to have Loraine join us. Her industry-recognized knowledge is such a valuable addition to our firm,” added Robbie Malone, Partner at Malone Frost Martin PLLC. 

For more information related to the services provided by Malone Frost Martin, PLLC please contact:

Mike Frost
Partner
Direct: (214) 346-2640
Cell: (319) 883-0306
mfrost@mamlaw.com