New Jersey CFPB Bulletin 2013-07: Collection of Consumer Debt

On July 10, 2013 the Consumer Financial Protection Bureau (CFPB) released CFPB Bulletin 2013-07 Prohibition of Unfair, Deceptive, or Abusive Acts or Practices in the Collection of Consumer Debts.  CFPB Bulletin 2013-07 outlined some of the practices the CFBP deems to be Unfair, Deceptive, or Abusive Acts or Practices (UDAAPs) as determined by the Dodd-Frank Act and the Fair Debt Collection Practices Act (FDCPA).  Footnote 5 of CFPB Bulletin 2013-07 states that “The FDCPA also covers, as a ‘debt collector,’ a creditor who, in collecting its own debts, uses any name other than its own which would indicate that a third person is attempting to collect the debts.”  Furthermore, the Bulletin notes that “[o]riginal creditors and other covered persons and service providers involved in collecting debt related to any consumer financial product or service are subject to the prohibition against UDAAPs in the Dodd-Frank Act.”

Unfair Act or Practice

According to CFPB Bulletin 2013-07, under the D0dd-Frank Act “an act or practice is unfair when:

1. It causes or is likely to cause substantial injury to consumers;

2. The injury is not reasonably avoidable by consumers; and

3. The injury is not outweighed by countervailing benefits to consumers or to competition.” [footnote omitted].

CFPB Bulletin 2013-07 stated that to determine whether a substantial injury occurs the Bureau will look at the totality of the circumstances.  While monetary damage will be a huge factor, the Bulletin also states that “[a]lthough emotional impact and other subjective types of harm will not ordinarily amount to substantial injury, in certain circumstances emotional impacts may amount to or contribute to substantial injury.” [footnote omitted].  Furthermore, a consumer will not have to prove actual harm, if there is a significant risk of concrete harm, a consumer can prove that a collector used an unfair act or practice.

Deceptive Act or Practice

The Bulletin also describes what conduct would be a deceptive act or practice by a business according to Dodd-Frank.  The determining factors are:

1. “The act or practice misleads or is likely to mislead the consumer;

2. The consumer’s interpretation is reasonable under the circumstances; and

3. The misleading act or practice is material.” [footnote omitted].

Just like with the unfair act or practice, the CFBP will look at the totality of the circumstances to determine if the collector mislead the consumer.  CFPB Bulletin 2013-07 did note that representations and omission can constitute misleading a consumer.

CFPB Bulletin 2013-07 stated that “[t]o determine if the consumer’s interpretation of the information was reasonable under the circumstances when representations target a specific audience, such as older Americans or financially distressed consumers, the communication may be considered from the perspective of a reasonable member of the target audience.” [footnote omitted].  A further caveat to this is that if a significant minority of a group is deceived by the act or practice, then the act or practice is misleading.  If a business makes a representation that could have two meanings and one of the meanings if false, it will be deemed a violation of the Dodd-Frank Act as a deceptive act or practice.

Abusive Acts or Practices

CFPB Bulletin 2013-07 also outlined what would constitute an abusive act or practice by a business under the Dodd-Frank Act.  The factors to determine if the conduct is abusive are:

1) Materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service; or

2)Takes reasonable advantage of –

a)    a consumer’s lack of understanding of the material risks, costs, or conditions of the product or service;

b)    a consumer’s inability to protect his or her interests in selecting or using a consumer financial product or service; or

c)     a consumer’s reasonable reliance on a covered person to act in his or her interests.” [footnote omitted].

CFPB Bulletin 2013-07 states that each of these abusive acts are judged by a separate legal standard.

Do you have Questions regarding how CFPB 2013-07 affects you?  Contact our New Jersey business attorneys, The Jayson Law Group LLC.

Privacy and Cell Phone Location in New Jersey—Part II

In our last article, we discussed the New Jersey Supreme Court was deciding whether people’s privacy is at risk by using cell phone location information. We will pick up today with the court’s decision.

The court argued that using a cell phone to determine a person’s location is much more invasive and revealing than other ways to determine location that the court had previously determined required the police to obtain search warrant by showing probable cause (i.e. toll billing, bank, or Internet subscriber records). (Id. 29). The court likened using cell-phone location services to “using a tracking device [that] can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate.” (Id., citing United States v. Jones, 565 U.S. ___, ____ (2012) (Alito, J., concurring). The personal information that could be learned by reviewing such information can “provide an intimate picture of one’s daily life.” (Id. 30, citing Jones, at ____ (Sotomayor, J., concurring)).

In acknowledging that the cases from the Supreme Court would have found differently than the Supreme Court of New Jersey, the Supreme Court of New Jersey was once again strengthening Article 1, Paragraph 7 of the New Jersey Constitution in relation to the Fourth Amendment of the U.S. Constitution. The court acknowledged that the ruling in Earls “announces a new rule of law by imposing a warrant requirement.” (Id. 34).

So what does this mean for the people of New Jersey? Can the police never use third-party location information? No. In order for the police to access the location information of a cell-phone they must obtain a search warrant by showing probable cause to the appropriate authority. Absent probable cause police must show that there were exigent circumstances as to why a search warrant was not acquired.  If you have questions we are happy to help call us today at Jayson Law Group LLC. We serve all over New Jersey including UnionNewarkElizabethHillside and more.

Privacy and Cell Phone Location in New Jersey

On July 18, 2013 the Supreme Court of New Jersey decided State v. Earls, No. A-53-11 (N.J. Sup. Ct. 2013). The court in Earls was deciding “whether people have a constitutional right of privacy in cell-phone location information.” (Id. 2). Justice Rabner, in writing for a unanimous court, acknowledged that Article I, Paragraph 7 of the New Jersey State Constitution offers more protection than the Fourth Amendment of the United States Constitution. (Id.). Furthermore, New Jersey law protects an individual’s right to privacy even if they have to give information to a third-party provider to receive the service (Id. 3, citing State v. Reid, 194 N.J. 386, 399 (2008)). Continue reading

Have We Seen the Last of “Say-On-Pay” Litigation?

In the past few years, Say-On-Pay litigation was at its highest levels in the business world. Say-On-Pay litigation refers to lawsuits that are filed by shareholders and which allege that an executive is receiving a salary that is too high. He or she may have a salary that is in gross disparity to other employees, and this can be a source of contention for shareholders. Recent months show that this litigation may have come to an end. Continue reading