Archives for April 2023

The U.S. PIRG Education Fund (PIRG) released a report analyzing consumer complaints submitted to the Consumer Financial Protection Bureau (CFPB) in 2021 and 2022. The report noted that consumer complaint totals set a new record in 2021 (496,000), only to have that record broken by a considerable margin in 2022 (800,394). According to PIRG, complaints against national consumer reporting agencies (CRAs) were the largest category, nearly doubling from 2021 to 2022. However, complaints against the debt collection industry fell by 15% during that same time period.

Highlights from the report include:

Top Five Complaint Issues in 2022:

• Incorrect information on your consumer report (229,638);
• Improper use of your consumer report (210,792);
• Problem with a CRA’s investigation into an existing problem (153,539);
• Attempts to collect a debt not owed (31,112); and
• Managing an account (22,769).

Complaints by Top-Level Product Category in 2021-2022:

• Checking or savings account (29,555 in 2021 and 37,585 in 2022);
• Credit card or prepaid card (31,823 in 2021 and 39,883 in 2022);
• Credit reporting or credit repair services (307,548 in 2021 and 604,221 in 2022);
• Debt collection (70,339 in 2021 and 59,493 in 2022);
• Money transfer, virtual currency, or money service (13,895 in 2021 and 13,537 in 2022);
• Mortgage (26,531 in 2021 and 23,291 in 2022);
• Payday loan, title loan, or personal loan (4,352 in 2021 and 5,771 in 2022);
• Student loan (4,131 in 2021 and 7,957 in 2022); and
• Vehicle loan or lease (7,826 in 2021 and 8,656 in 2022).

Fraud and Scams Complaints on the Rise:

[article_ad]

• Fraud or scams was the 10th most reported issue in 2022 with 6,681 complaints; and
• Fraud or scams in the mobile or digital wallet sub-product increased by 68% from 2021 to 2022 and by 52% in the virtual currency sub-product in that same timeframe.

PIRG’s findings showing a rise in complaints involving consumer reporting issues, but a decline in debt collection complaints, align with litigation trends discussed here. Federal court filings under the Fair Credit Reporting Act (FCRA) increased by 3.5% from 2021 to 2022, but filings under the Fair Debt Collection Practices Act (FDCPA) decreased by 31% during that same timeframe.

PHOENIX, Ariz. — — Remitter, a digital communication and collections platform announces it’s partnership with One Tree Planted, a globally recognized non-profit organization focused on reforestation and environmental conservation efforts. For every client we onboard Remitter pledges to plant 10 trees in regions where they are needed most. 

The partnership between Remitter and One Tree Planted is a strategic collaboration aimed at furthering the shared commitment to environmental sustainability and addressing the urgent need for reforestation around the world. Through this partnership, Remitter will continue to make a positive impact on the environment by contributing to the restoration of deforested areas and supporting the planting of trees in critical regions.

Working with One Tree Planted is a great fit for Remitter as it aligns with our values,” said Dave Snow, President at Remitter. “Sustainability is at the core of our business model, and while we make a tremendous impact by helping our clients go digital and reduce paper billing, it’s great to have another way to give back and help the environment.” 

One Tree Planted is a reputable organization that has been making a significant difference in reforestation and conservation space for years. They work with local communities, organizations, and volunteers to plant trees in various regions globally, including North America, Latin America, Africa, Asia, and Australia.

“We are excited to partner with Remitter and collaborate in our joint mission on sustainability and to restore and protect our planet’s forests,” said Matt Hill, Founder of One Tree Planted. “With Remitter’s commitment to sustainability, we are confident that this partnership will make a meaningful impact and contribute to the reforestation efforts globally.”

The partnership between Remitter and One Tree Planted exemplifies the importance of corporate social responsibility and environmental stewardship. By joining forces, both organizations aim to create a positive ripple effect and inspire others to take action towards protecting and preserving our planet’s natural resources.

About Remitter 

Remitter is an AI-powered digital communications and payment platform designed to maximize collections revenue by optimizing customer engagement and driving self-serve payments. Our system utilizes machine learning to adapt to each consumer’s preferences and responds to their actions by delivering fully automated messaging and payment options while driving consumer participation and payments.

About One Tree Planted 

One Tree Planted is a nonprofit on that is a mission to make it simple for anyone to help the environment by planting trees. Their projects span the globe and are done in partnership with local communities and knowledgeable experts to create an impact for nature, people, and wildlife. Reforestation helps to restore forests that have been Reforestation helps to restore forests that have been degraded or deforested, provide jobs for social impact, and restore biodiversity habitat. Many projects have overlapping objectives, creating a combination of benefits that contribute to the UN’s Sustainable Development Goals. Learn more at onetreeplanted.org

Debt collectors have become accustomed to erring on the side of providing consumers with information regarding their debts, regardless of whether a dispute or verification request is timely. But should they? No, says a judge in the Western District of Missouri, who recently held that doing so may violate the Fair Debt Collection Practices Act (FDCPA).

In Denmon v. Kansas Counselors, Inc. (21-00457; W.D. Mo 2023), a debt collector sent a consumer its initial debt collection letter, and nearly four years later, the consumer mailed the debt collector a letter that said:

[article_ad]

“I reviewed my credit report and discovered that you are reporting that I owe you $300 for a debt to Rockhill Orthopedic Specialists, Inc. I dispute this debt. Please do not contact me about this debt.”

Shortly after that, the collection agency responded by letter with the following language (in addition to the mini Miranda):

“We recently received your request for verification of your account with our office.

In response to your request, we are enclosing documents provided by our client which verify your debt.

Now that our debt has been verified, we will resume collection activity on your account. We are always interested in assisting you in your efforts to resolve this matter.”

The consumer then filed a lawsuit alleging that the debt collector’s response violated the FDCPA. She argued that because her letter asked the debt collector to cease communication, they should not have contacted her, even to provide verification documents. The debt collector filed a motion for summary judgment, arguing that “one unwanted letter is insufficient to support a claim of actual injury,” thus the consumer lacked Article III standing. 

After confirming one letter was sufficient to establish standing, the court rejected the debt collector’s argument that it was required to send documents to the consumer. The court held that the letter did not qualify as a validation letter under the FDCPA since the validation period had lapsed. Further, the letter did not otherwise fit under any of the three exceptions to cease requests found in 15 U.S.C.A. Section 1692c(c). In the court’s opinion, despite disputing the debt, since the consumer’s letter was not timely to be considered a dispute, it was simply a request to cease communication.

insideARM Perspective:

This ruling is troubling. Acting in the consumer’s best interest, debt collectors often respond to disputes and requests for verification after the verification has expired. No good deed goes unpunished though, and debt collectors must be conscious of the timing of consumer disputes to determine what that dispute actually triggers. 

Is this a one-off, outlier case? Hopefully. If not, the end result may cause debt collectors to strictly enforce the FDCPA’s 30 day verification window, and decline to accomodate late requests. This seems to go completely against the consumer-centric world debt collectors have spent significant time and resources to meet.  

Debt collectors are used to having a thin line to walk on; now, it’s a tightrope.

A court victory by TrueAccord Corp. (TrueAccord) in the Northern District of Illinois continues to showcase the benefits of digital collection as the court found receiving an email about a debt is less intrusive to consumers than receiving a phone call. Messer Strickler Burnette represented TrueAccord and filed the briefing in the case.

In the Branham v. TrueAccord opinion, the court granted TrueAccord’s motion to dismiss finding that the alleged injuries claimed by the plaintiff—undue stress and anxiety, financial and monetary loss, uncertainty as to how to proceed about the debt, and a harm that “bears a close resemblance” to invasion of privacy—are insufficient to establish standing for a Fair Debt Collection Practices Act (FDCPA) claim.

Plaintiff’s Allegations

Plaintiff alleged that TrueAccord violated the FDCPA by contacting her twice by email after having received notice that she was represented by an attorney. TrueAccord had no record of receiving a notice of attorney representation from the plaintiff. However, when deciding on a motion to dismiss like this, the court must rely solely on the facts and allegations in the complaint and consider them as true, whether or not they are.

[article_ad]

In the complaint, the plaintiff included a laundry list of alleged injuries suffered as a result of receiving the two emails from TrueAccord. These injuries included:

• “Actual” financial and monetary loss without any specifics
• Confusion on how to proceed with TrueAccord’s debt collection attempts due to “misleading statements”
• Undue stress and anxiety as well as wasted time, annoyance, emotional distress, and informational injuries
• A harm that “bears close resemblance to” invasion of privacy

Plaintiff Did Not Allege a Concrete, Particularized Injury

In its decision, the court shot down each of these alleged harms and found that the plaintiff failed to properly plead a concrete, particularized injury as the U.S. Supreme Court required in Spokeo, Inc., v. Robins. 

Specifically, the court found:

1. Unlike telephone calls, two unwanted emails are insufficient to confer standing and wouldn’t be “highly offensive” to the reasonable person.

2. Alleged physiological harms (e.g., emotional distress, anxiety, and stress) are abstract harms and not concrete enough to support standing without a physical manifestation of such harms.

3. Vague and conclusory statements that the plaintiff suffered financial harm without any allegations of facts to support that alleged harm are insufficient.

4. Attorney fees for bringing suit on a matter cannot be the sole basis of standing to bring the matter; to do otherwise would permit any plaintiff without standing to create it by retaining counsel.

5. “Wasted time” is not a sufficient harm for standing where no facts are alleged to support the claim.

6. The risk of an invasion of privacy without an actual invasion of privacy is too speculative and not sufficient to confer standing.

Sophisticated Omnichannel Communication Strategies

This decision is another step forward for the use of email in debt collection as the consumer-friendly way. It also showcases the need for mindfulness when implementing an omnichannel communication strategy. Notably, while the court found a couple of emails are less intrusive than a phone call, it also stated that text messages, voicemail, and calls are different as they “are sufficiently intrusive on an individual’s peace and quiet” to support standing. Using a sophisticated omnichannel strategy helps debt collectors reach consumers at times that are right for the consumer and through the right communication channel, which ultimately creates a non-intrusive consumer experience.

Read the full opinion here. 

The California Department of Financial Protection and Innovation (DFPI) is listening to industry input as it finalizes its proposed complaints and inquiries regulation. Its most recent update (Third Proposal) included the adoption of language recommended by the Consumer Relations Consortium (CRC) to avoid creating personal liability for employees of covered entities.

CRC Legal Advisory Board members Jessica Klander of Bassford Remele and John Bedard of Bedard Law Group prepared the CRC’s comments.

Background

The DFPI released its original proposal in May 2022 and an update (which also adopted the CRC’s suggestions) in December 2022. In March 2023, the DFPI published a second update that appeared to create personal liability by requiring a covered entity to designate an officer who is “ultimately accountable” for the effective operation and governance of the complaint process. This phrase appeared to create personal liability for employees of covered entities.

On April 7, 2023, the CRC submitted a comment suggesting the DFPI could achieve its regulatory goals without creating personal liability by making the following changes:

[article_ad]

1. Striking the phrase “ultimately accountable”; and 

2. Updating the definition of “officer” to say, “‘Officer’ means an individual designated by the covered person with primary authority and responsibility for the effective operation and governance of the complaint process, including the authority and responsibility to monitor the complaint process and resolved complaints.”

The DFPI followed both suggestions in the Third Proposal.

The language proposed in the CRC’s comment is included verbatim in Section 1071(c) of the Third Proposal in the newly created definition of “Complaint officer” (page 3) and in Section 1072(f), which created personal liability in the previous version (page 7). The phrase “ultimately accountable” has been removed entirely. 

The Third Proposal also includes minor clarifications and replaces font size requirements with a “clear and conspicuous” standard. Comments to the Third Proposal are due Saturday, April 29, 2023.

The Third Proposal can be found here.

The CRC’s comment, now adopted by the DFPI, can be found here. 

About the Consumer Relations Consortium 

The Consumer Relations Consortium (CRC) is an organization comprised of more than 60 national companies representing the diverse ecosystem of debt collection including creditors, data/technology providers, and compliance-oriented debt collectors that are larger market participants. Established in 2013, CRC is evolving the debt collection paradigm by engaging stakeholders—including consumer advocates, Federal and State regulators, academic and industry thought leaders, creditors and debt collectors—and challenging them to move beyond talking points and focus on fashioning real-world solutions that actually improve the consumer experience. CRC’s collaborative and candid approach is unique in the market.  CRC is managed by The iA Institute.

About the Legal Advisory Board

The Legal Advisory Board (LAB) is an exclusive membership group of outside counsel with expertise in the accounts receivable industry who have each pledged their time and resources to support the mission of the CRC. The LAB is limited to ten law firms and is comprised of fourteen total attorneys. The 2023 members can be found here. Throughout the year, the LAB serves as a legal resource to the CRC membership and assists in fulfilling the mission of promoting forward-thinking approaches to the issues raised by regulatory policy and technology innovation in the accounts receivable industry.

In a significant boost to the financial services industry, Utah has taken major steps to streamline its debt collection bureaucracy — including the removal of criminal penalties for failure to comply with technical requirements.

Utah House Bill 20, titled “Collection Agency Amendments,” was signed into law last month and goes into effect May 3, 2023. It repeals nine statutes passed in the 1980s and 1990s, among them the requirement that collection agencies register with the Utah Division of Corporations and Commercial Code — a process that has historically entailed numerous registration forms and fees. Also among the repealed statutes are provisions imposing bond requirements and record-keeping mandates, as well as restrictions on the assignments of debts. Previously, failure to comply with these red-tape-like statutes was a class A misdemeanor; now that criminal penalty has been repealed as well.

After May 3, the only collection agency statute that will remain from Title 12 of the Utah Code governs the limitations and terms of collection fees and convenience fees imposed by creditors or third-party debt collection agencies. See Utah Code Ann. § 12-1-11.

Utah legislators who shepherded the bill’s passage included bill sponsor Representative Cory Maloy (R) who argued that the bill “takes out some of the redundancy in regulations that are not used or not necessary.” The floor sponsor in the Utah Senate, Senator Curtis Bramble (R) characterized the repealed statutes as “extraneous.”

Extraneous and redundant they may be, but the statutes’ repeal is expected to have an immediate impact on a cottage industry that has sprung up among enterprising plaintiffs’ attorneys, who have seized on technical or borderline violations of the statutes to file lawsuits against debt collectors on behalf of individual debtors and even, occasionally, putative classes. As a consequence of the repeal, such lawsuits may no longer be viable in Utah.

On Friday, March 10, the California Department of Financial Protection and Innovation (DFPI) closed Silicon Valley Bank (SVB), the subsidiary of SVB Financial. The Federal Deposit Insurance Corporation (FDIC) was appointed the receiver of its over $250 billion in assets. This is the largest U.S. bank failure since the global financial crisis more than a decade ago.

SVB was the premier financial institution of choice for startups, fintechs, and their venture-capital/private equity (VC/PE) partners. SVB had over $200 billion in deposits in early 2022. Much of those deposits were in excess of the FDIC-insured limit of $250,000.00. To manage this excess liquidity, SVB Financial invested primarily in long-term U.S. Treasury and government-backed mortgage securities with fixed interest rates. This increased SVB’s securities portfolio threefold.

While these securities were safe bets because of the low risk of default, when they need to be liquidated prior to term, in a market of rising interest rates, the securities suddenly have a rapid decline in value. Couple this will a rapid cash outflow from depositors and SVB’s securities portfolio had a gap of $17 billion by the end of 2022.

SVB tried to cover this gap last week by selling $21 billion of their securities but for a loss of about $1.8 billion. Due to this loss, portfolio clients were then warned by VC/PE partners to withdraw deposits from SVB.

SVB was not alone in its liquidity strategy. Other similarly situated banks and mid-sized lenders whose portfolios contained long-term government-backed securities are seeing a similar fate in the need to sell quickly or raise capital.

What does this mean for banks?

The SVB implosion underscores the need for banks of all sizes to develop and maintain an effective risk management program, particularly with respect to assessing and managing interest rate and liquidity risks in the current rising interest rate environment. As the details of the debacle continue to unfold, we have also learned that SVB operated for much of 2022 without a chief risk officer. An effective risk management program should ensure that a competent and experienced professional is responsible for evaluating and mitigating risks enterprise-wide.

Banks should examine their exposure to rising interest rates and conduct stress testing of their cash management practices. SVB failed to effectively manage its unusually large exposure to interest rate risk: with less dependency on retail deposits than most banks, funding became more expensive at the same time that assets were not repricing higher. The rapid interest rate increases by the Federal Reserve have not provided banks with much time to shift their balance sheets and portfolios, but increased stress testing of various scenarios could help increase the swiftness of banks’ responses.

This crisis should also encourage banks to examine the concentration of their liabilities as well, and not simply the quality of their assets. Deposits at SVB were concentrated in a high-risk deposit base: start-up companies that were impacted by the downward trend in VC investments and operated in the same technology sector. Fear mongering by key players in the VC space led to a traditional bank run in which companies were advised to withdraw their cash due to the concern that nearly all of the SVB’s deposits were too large to be eligible for FDIC deposit insurance. The fact that such a dramatically low percentage of SVB’s deposits were insured made this bank unusually susceptible to a bank run, and we can expect that regulators will increase scrutiny of banks’ customer bases going forward.

What does this mean for Fintechs and Venture Capital/Private Equity Firms?

Investments in startups and fintechs were at an all-time high during and after the pandemic. Those investments significantly cooled in the first quarter of 2023. Many of the major VC/PE companies did business with SVB. Many will lose cash and their return on their investment in SVB stock. For these VC/PE portfolio clients, capital raises will be difficult or non-existent. However, this may result in opportunities for other non-SVB VC/PE companies to step in but expect a very conservative approach and smaller commitments of investment until the economic fallout becomes clearer. Finally, VC/PE companies will need guidance when establishing new banking relationships to ensure their deposits are adequately protected.

—————

Clark Hill’s Regulatory Compliance Group of its Banking and Financial Services Practice is well-versed in liquidity and risk management issues for depository as well as non-depository institutions. Our members have worked closely with federal and state regulators like the FDIC, OCC, Federal Reserve, and the CFPB to assist our clients to meet regulatory expectations.

In addition, Clark Hill’s litigators have substantial experience in financial services litigation, complex insolvency matters, enforcement actions initiated by federal agencies, and claims determination and distribution processes that arise in these cases.

For more information or to discuss your needs, please contact our liquidity and risk management response team and attorneys Joann Needleman, Kevin Kent, and Stephanie Hager.

Iowa Gov. Kim Reynolds on March 28 signed into law SF 262, making Iowa the sixth state to enact comprehensive consumer data privacy legislation.  The other states are California, Virginia, Colorado, Utah, and Connecticut.  The law will take effect Jan. 1, 2025.

In her press release, Gov. Reynolds stated, “In our digital age, it’s never been more important to state, clearly and unmistakably, that consumers deserve a reasonable level of transparency and control over their personal data. That’s exactly what this bill does, making Iowa just the sixth state to provide this kind of comprehensive protection.”

Applicability

The bill applies to any person conducting business in Iowa or producing products or services that are targeted to Iowans and that during a calendar year does either of the following: 

1. Controls or processes personal data of at least 100,000 consumers; or
   
2. Controls or processes personal data of at least 25,000 consumers and derives over 50% of gross revenue from the sale of personal data.

Exemptions

[article_ad]

Importantly, the law exempts financial institutions, their affiliates, and data subject to the Gramm-Leach Bliley Act. Also exempt, among others, are persons and certain data subject to the Health Insurance Portability and Accountability Act, and personal information to the extent its use is regulated and authorized by the Fair Credit Reporting Act.

Consumer Rights

Consumers are provided with the right to:

1. confirm whether a controller is processing the consumer’s personal data and to access such personal data;
2. delete personal data provided by the consumer;
3. obtain a copy of the consumer’s personal data; and
4. opt out of the sale of personal data.

Contract Requirements

A contract between a controller and a processor must include certain provisions to ensure that:

1. each person processing personal data is subject to a duty of confidentiality;
2. a processor will delete or return all personal data to the controller upon request;
3. a processor will provide a controller with all information necessary to demonstrate the processor’s compliance; and
4. any subcontractor or agent of the processor will meet the duties of the processor pursuant to a written contract.

Enforcement

The Attorney General has the exclusive authority to enforce the law. Prior to taking any action, the Attorney General must provide a controller or processor 90 days to cure the violation. In the absence of a cure, civil penalties of up to $7,500 may be sought for each violation.

Preemption

The law preempts “all rules, regulations, codes, ordinances, and other laws adopted by a city, county, municipality, or local agency regarding the processing of personal data by controllers or processors.”

Impression

The Iowa law is very similar to the data privacy laws in Virginia, Colorado, Utah, and Connecticut, so for businesses gearing up to comply with the law in one or more of those other states there should be little additional effort to include Iowa.

Iowa’s law is generally more business friendly since it does not include the right to correct and does not require opt in for processing sensitive data.  It also has a generous 90-day period for responding to consumer requests with a possible 45-day extension (Virginia, Colorado, Utah, and Connecticut are 45 and 45), and a 90-day cure period for violations (Virginia and Utah are 30, and Colorado and Connecticut are 60).

For more information and insight from Maurice Wutscher on data privacy and security laws and legislation, click here.

SCRANTON, Pa. — Abrahamsen Gindin LLC (AG Law), a multi-state creditors’ rights firm headquartered in Scranton, Penn., recently acquired Long Island-based Forster and Garbus LLP.

AG Law is owned by Joshua Gindin, David Schlee, Josh Borer, and Ned Abrahamsen. The firm currently operates in New York, New Jersey, Pennsylvania, Delaware, Maryland, and Washington, D.C.; it plans to expand further once the firms are fully integrated within 12 to 18 months.

In addition, AG Law will introduce cloud-based technology for better efficiency in filing lawsuits while maintaining effective and compliant attorney involvement. 

“With the synergy between the two firms, we expect to provide state-of-the-art performance for our clients,” Gindin said.

“Our goal is to maintain a compliance system that lowers legal and litigation risk for our clients,” Schlee added.

Attorney Ron Forster will be retiring once the transition is complete. “It’s comforting knowing that the relationships we have built over the last 50 years will continue uninterrupted,” Forster said. “We are confident that AG Law will meet and exceed our clients’ expectations. AG Law is a like-minded firm that brings updated technology, youth, and financial stability to our organization.”

Contact:

Evan Forster, Director of Marketing and Client Development, eforster@ag-lawllc.com, 631-393-9406

As discussed here, in August 2020, a district court for the Middle District of Tennessee held that a medical provider’s third-party billing servicer did not qualify as a debt collector under the Fair Debt Collections Practices Act (FDCPA) because the debt was not in default when it was placed with the extended billing office (EBO). On March 24, 2023, the Sixth Circuit affirmed that decision.

The complaint arose out of two visits the plaintiff made to a medical center. On each visit prior to receiving treatment, the plaintiff signed an agreement acknowledging that the medical center may use a third party as an EBO for account and billing services, and that the account would not be considered past-due or in default while placed with the EBO. The defendant EBO then sent two statements to the plaintiff, including a payment due date and a payment request, and left two voicemails. 

The plaintiff subsequently filed suit, alleging that the EBO violated 15 U.S.C. § 1692(d) and (e) of the FDCPA by failing to disclose its identity when contacting the plaintiff, failing to notify the plaintiff that it was attempting to collect a debt, and by failing to use its full “true name” in its voicemail messages. The EBO subsequently moved for summary judgment arguing that it is not a “debt collector” subject to the FDCPA. The court agreed, holding that the EBO did not fit the FDCPA’s definition of a “debt collector” as the plaintiff’s debt was not in default when the account was placed with it.

As the Sixth Circuit noted, “liability under the FDCPA attaches only to a ‘debt collector.’” In order for the EBO to be considered a debt collector under the statute, the plaintiff’s account had to be in default when it was transferred to it. Upon review of the record, the court found nothing to indicate the plaintiff’s account was being treated as in default. 

While the plaintiff had failed to pay the bill marked “due on receipt” weeks before the account was placed with the EBO, the court found there was nothing in the record to suggest that the failure to pay was being treated as a breach. “Indeed, for eighty days on the first account and sixty days on the second, [the medical center] just waited for [the plaintiff] to pay. Then it sent the debt to [the EBO] who sent [the plaintiff] statements with due dates that were ten to fifteen days out, with no interest charged. And while [the EBO] had the debt, [the medical center] agreed that it would not consider [the plaintiff’s] account to be ‘delinquent, past due or in default.’” Since neither the medical center nor the EBO treated the debt as if it were in default, the court of appeals agreed with the district court that the EBO was not a debt collector under the FDCPA.