THE CFPB’S ROLE

The Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB, authorizes the CFPB to supervise “larger participants” for nonbank markets for consumer financial products or services, such as debt collection and credit reporting. The Act requires the CFPB to define “larger participants” by July 21, 2012.

When announcing the proposed rule, Richard Cordray, the CFPB Director stated:

Consumer financial products and services have become more complex over the years and they have expanded well beyond traditional banks. . . Our proposed rule would mean that those debt collectors and credit reporting agencies that qualify as larger participants are subject to the same supervision process that we apply to the banks. This oversight would help restore confidence that the federal government is standing beside the American consumer.

The actual proposal, Defining Larger Participants in Certain Consumer Financial Product and Service Markets, can be viewed here or on the CFPB’s website: www.consumerfinance.gov

DEBT COLLECTION

The CFPB approximates that 30 million Americans have debt held by a debt collector, with the average debt amount of $1,400.00.

Under the proposed rule, debt collectors with more than $10 million in annual receipts from debt collection activities would be subject to supervision. Based on available data, the CFPB estimates that the proposed rule would cover approximately 175 debt collection firms, which account for about 4 percent of debt collection firms. These firms account for 63 percent of annual receipts from the debt collection market.

CONSUMER REPORTING AGENCIES

As cited by the CFPB, according to the Consumer Data Industry Association, each year there are 36 billion updates to consumer credit reporting files and three billion reports are issued. The three largest consumer reporting agencies, Equifax Credit Information Services, Inc., (Equifax), Trans Union LLC (Trans Union), and Experian Information Solutions, Inc. (Experian), maintain information on 200 million Americans. A person’s credit report affects both whether they can get credit or borrow money and the interest rate in which it is lent. These reports also may prevent someone from obtaining a job. While a person is entitled to a free copy of their credit report from the three major agencies once a year, which everyone should do, it is difficult to obtain information from the so-called “Fourth Bureau” firms. These firms, which target approximately 30 million consumers, fall outside of the mainstream lending system. These “Fourth Bureau” firms get information from payday lenders, check cashers and prepaid cards, among others. The typical users of these “lenders” are low income consumers, students and immigrants.

Under the proposed CFPB monitoring rule, consumer reporting agencies with more than $7 million in annual receipts from consumer reporting activities would be subject to CFPB supervision. This would include approximately 7 percent of consumer reporting agencies based on available data and would cover about 30 consumer reporting agencies. The CFPB estimates that these 30 companies account for approximately 94 percent of the annual receipts from consumer reporting. This would include the 3 major agencies, Equifax, TransUnion, and Experian, as well as some of the “Fourth Bureau” firms.

WHAT YOU CAN DO

Lapin Law Offices supports the proposed rules although we believe they should extend even farther. Debt collection abuse is extremely widespread and the annual receipt threshold should be lowered so more debt collectors are included. In addition, while the proposal would covers where most of the money goes for credit reporting, only 27 “Fourth Bureau” firms would be included. More of these firms should be monitored as it is extremely difficult for a consumer to even know who these firms are or how to fix incorrect information.

The comment period for the proposed CFPB Rule is 60 days, which began on February 16, 2012. If you support these proposed rules or want the CFPB to go even farther we urge you to post a comment, which you can do by clicking here and typing “CFPB-2012-0005-0003″ in the Search box.

PRIOR POSTS REGARDING DEBT COLLECTION AND CREDIT REPORTING

Social Media and Debt Collection: Facebook and Twitter: Part 1

Social Media and Debt Collection: Limited in the United Kingdom: Part 2

Social Media and Debt Collection: The United States: Part 3

Common Misperceptions About Credit Scores

Credit Scores: Why Are They So Important and How Are They Calculated

The Consumer Financial Protection Bureau (CFPB) – Will It Be Better for Consumers or Debt Collectors?

Proposed Act Would Permit Debt Collectors to Use Auto-Dialers to Call Cellular Telephones

ABOUT LAPIN LAW OFFICES

Lapin Law Offices represents consumers harassed or abused by debt collectors and those whose righs have been violated under the Fair Credit Reporting Act (FCRA). You can learn more about your rights by calling us at 402-421-8033 or through our websites: Lapin Law Offices or StopBadCollectors.com for a free consultation.

In announcing the proposals, Secretary LaHood stated, “Distracted driving is a dangerous and deadly habit on America’s roadways – that’s why I’ve made it a priority to encourage people to stay focused behind the wheel.” These guidelines are a major step forward in identifying real solutions to tackle the issue of distracted driving for drivers of all ages.

These Guidelines would not affect conventional controls and displays, such as heating, air conditioning, instrument gauges, because these are considered part of the “primary driving task.” In addition, they are not intended to limit collision warning or vehicle control systems, which are designed to aid the driver in controlling a vehicle and avoid crashes.

THE PROPOSED GUIDELINES

The proposed Phase I distraction guidelines include recommendations to automakers to:

Reduce complexity and task length required by the device;

Limit device operation to one hand only (leaving the other hand to remain on the steering wheel to control the vehicle);

Limit individual off-road glances required for device operation to no more than two seconds in duration;

Limit unnecessary visual information in the driver’s field of view;

Limit the amount of manual inputs required for device operation.

The DOT and NHTSA proposals would request automakers prevent drivers from using certain in-vehicle equipment that is believed to so interfere with a driver’s ability to safely control the vehicle that their use should not be permitted while driving. The list of tasks to inherently interfere with a driver’s ability to safely operate the vehicle include:

Displaying images or video not related to driving;

Displaying automatically scrolling text;

Requiring manual text entry of more than six button or key presses during a single task; or

Requiring reading more than 30 characters of text (not counting punctuation marks).

These items are intended to prevent many of the driver distractions created by newer technology such as text messaging, internet browsing, social media browsing; navigation system destination entry by address and manually 10-digit phone dialing. The Phase I Guidelines are intended to limit visual tasks for factory installed equipment; those tasks that could be done by voice or sound would presumably not be effected nor would after-market or portable devices.

The full Guidelines, Visual-Manual NHTSA Driver Distraction Guidelines for In-Vehicle Electronic Devices, is available here or on the Department of Transportation’s website (www.dot.gov).

FUTURE GUIDELINES

The DOT and NHTSA are considering additional guidelines, Phases II and III, to address these items not covered by Phase I. Phase II proposed guidelines may address devices or systems that are not built into the vehicle but are brought into the vehicle and used while driving, including aftermarket and portable personal electronic devices such as navigation systems, smart phones, electronic tablets and pads, and other mobile communications devices. Phase III would consider voice-activated controls to further minimize distraction in factory-installed, aftermarket, and portable devices.

CONCLUSION

These proposals are a good first step in trying to limit driver distraction. Distracted driving caused at least 3,092 deaths in 2010. However, it is important to remember these even those tasks that would not be affected still can lead to driver distraction, accident, injuries and death. The guidelines merely attempt to limit the “length” of the distraction. In addition, these are just guidelines; automakers would not be required to abide by them. Drivers needs to remember their only job as a driver is to drive and make sure everyone gets to their destination safely.

OTHER POSTS INVOLVING DRIVING

Bill Would Limit Liability in Escaped Cow- Vehicle Collisions

Drivers Prepare: Winter Weather Is Arriving Soon

Drivers: Beware of Deer

Drivers Understand But Often Ignore Risks of Texting or Talking on Cell Phone

Distracted Driving: Risks Inside Your New Car or Truck

LAPIN LAW OFFICES

Lapin Law Offices represents drivers and passengers involved in all types of motor vehicle collisions. If you have been injured please give us a call at 402-421-8033 (24/7) or contact us through our website,  LapinLawOffices.com, for a free initial consultation.

Ogallala State Sen. Ken Schilz, in LB 1021, wants to require motorists who collide with livestock to have to prove specific acts of negligence on the part of the owner before they can recover. This would be a significant change in Nebraska law. It also would make it virtually impossible for an injured motorist to win a case against a livestock owner.

ANIMAL ACCIDENT STATISTICS

According to the Nebraska Department of Roads 2010 Traffic Crash Facts Annual Report, in 2010 there were 3,497 crashes involving animals, with 2 fatalities and 235 injuries. (Available here: http://www.dor.state.ne.us/highway-safety/docs/facts2010.pdf). These numbers are slightly lower than the statistics for 2009. The Report does not break down the type of animal involved but does state the majority of vehicle-animal collisions involved deer.

PROPOSED BILL

Sen. Schilz wants to modify Nebraska Revised Statute § 25-21,274, which currently reads:

(1) In any civil action brought by the owner, operator, or occupant of a motor vehicle or by his or her personal representative or assignee or by the owner of the livestock for damages resulting from collision of a motor vehicle with any domestic animal or animals on a public highway, the following shall apply:

(a) The plaintiff’s burden of proving his or her case shall not shift at any time to the defendant;

(b) The fact of escaped livestock is not, by itself, sufficient to raise an inference of negligence against the defendant; and

(c) The standard of care shall be according to principles of ordinary negligence and shall not be strict or absolute liability.

LB 1021 would change subsection (b) to:

The fact of escaped livestock without evidence of specific acts of negligence is not sufficient to raise an inference of negligence against the defendant.

The full text of the amendment can be located on the State of Nebraska’s website here.

On February 8, 2012, Sen. Schilz told the Legislature’s Judiciary Committee:

“As a cattle feeder myself, I know how important it is to maintain good fences . . . But there are many times when cattle escape without the negligence of the owner.”

He added that cattle can jump fences, push down fences and unlock gates on their own. (Source: Journal Star). The Nebraska Cattlemen’s Association is supporting the bill.

WHY THE BILL SHOULD NOT PASS

It is often difficult to prove specific acts of negligence in escaped livestock cases. Cattle usually escape their pen when no one is present so how they got out is usually not known. Because of this, motorists can use the legal doctrine of “res ipsa loquitur”, which allows an inference of negligence against the owner of the cattle when certain requirements are met to help prove liability. “Res ipsa loquitur” is a Latin phrase that literally means “The thing speaks for itself.” To be able to use “res ipsa loquitur” in a case an injured person must established all of the following:

(1) The occurrence must be one which would not, in the ordinary course of things, happen in the absence of negligence;

(2) The instrumentality which produces the occurrence must be under the exclusive control and management of the alleged wrongdoer; and

(3) There must be an absence of explanation by the alleged wrongdoer.

It is usually elements 1 and 3 that are the hardest to prove. In addition, an injured person must have evidence beyond this as the statute does not permit the mere fact of escape, by itself, for the owner to be liable. Evidence that can help establish liability include: the type of fence and/or pen the cattle were kept in; whether the type of fencing and/or pen is commonly used in the cattle industry; how often as well as the last time the fencing and/or pen was inspected; and the condition of the fence at the time the livestock escaped.

Even under current law, winning a case in a vehicle-livestock collision is difficult. Sen. Schilz’ bill would eliminate the doctrine of res ipsa loquitur in these types of collisions. As such, injured persons could not rely on inferring negligence but would have to establish what the livestock’s owner specifically did wrong, which in most cases may be impossible to prove.

WHAT YOU SHOULD DO

The law already offers sufficient protection to livestock owners. LB 1021 would significantly tip the balance in favor of owner over injured persons. Motorists are urged to their Nebraska state senator and oppose LB 1021.

OTHER POSTS INVOLVING DRIVING

Drivers Prepare: Winter Weather Is Arriving Soon

Drivers: Beware of Deer

Drivers Understand But Often Ignore Risks of Texting or Talking on Cell Phone

Distracted Driving: Risks Inside Your New Car or Truck

LAPIN LAW OFFICES

Lapin Law Offices represents drivers and passengers involved in collisions with escaped cows. If you have been injured please give us a call at 402-421-8033 (24/7) or contact us through our website: LapinLawOffices.com.

On February 15, 2012, the Federal Communications Commission (“FCC”) announced new consumer protections against telemarketing robocalls. A “robocall”, also called an “autodialed call”, is a call which has a pre-recorded message made using an automatic telephone dialing system. The Telephone Consumer Protection Act (“TCPA”) already places limits on unsolicited prerecorded calls to landline home telephones, and all autodialed or prerecorded calls to wireless numbers. For more information about the TCPA, check out our website here . The FCC’s new rules further restrict robocalls and are intended to make it easier for a consumer to stop receiving them.

Prior to the FCC’s announcement yesterday, telemarketers could robocall a consumer if they had an “established business relationship” with the telemarketer. This usually meant that you have done business with the telemarketer within eighteen (18) months of the robocall.

The new rules require a consumer’s express, written consent before they can call any phone number. “Written consent” means either actual writing or electronically. The new rules also give consumers the power to stop future calls quickly by providing an “opt out” mechanism during the first few seconds of each robocall. By “opting out” a consumer revokes any prior consent to these types of call. If a consumer “opts out” the call must end and the telemarketer must add the consumer’s phone number to the company’s do-not-call list.

However, there are still “loopholes” and exceptions to these new rules. They do not affect “informational” calls to landlines such as those regarding school closings, airline flight information or notifications about possible fraudulent activity on a credit card. Your consent is still required for these types of calls to cell phones. In addition, political, polls and non-profit robocalls are still permitted. Finally, telemarketers can still have a “real” person call without violating the new rules.

More information regarding these rules can be found on the FCC’s website:

Report and Order

Robocalls Guide

Robocalls brochure: FCC Consumer Facts

The rules will come into effect as soon as they are approved by the Office of Management and Budget.

SUGGESTIONS REGARDING ROBOCALLS

1. Make sure you are on the National “Do Not Call” Registry, which is also known as the “Do Not Call List.” You can go to the website site to register by clicking here. Contrary to what most people believe, your registration on the list will not expire. This is due to a change in the law in 2008 that removed the requirement to re-register every five years.
2. Once the new FCC rules come into effect, opt-out of all future robocalls as soon as you are called.
3. Do not provide your phone number to businesses unless it is required. When you give your phone number this may constitute your consent to receive robocalls.
4. If you are on the Do Not Call List or have “opted out” and still receive telemarketing robocalls, contact Lapin Law Offices to learn more about your rights.

PRIOR POSTS REGARDING ROBOCALLS AND CONSUMER PROTECTION

A Victory for Consumers: H.R. 3035 (The Mobile Informational Caller Act of 2011) Killed By Co-Sponsors

Proposed Act Would Permit Debt Collectors to Use Auto-Dialers to Call Cellular Telephones

The Consumer Financial Protection Bureau (CFPB) – Will It Be Better for Consumers or Debt Collectors?

LAPIN LAW OFFICES

Lapin Law Offices represents persons harassed or abused by telemarketers and debt collectors. You can learn more about us and about your rights by calling us at 402-421-8033 (24/7) or on our websites: LapinLawOffices.com or StopBadCollectors.com.

UNITED STATES FEDERAL LAW

The United States’ Federal Trade Commission (FTC) Bureau of Consumer Protection – Division of Financial Practices and the Consumer Financial Protection Bureau (CFPB) are the primary federal agencies that regulate and enforce debt collection. The Fair Debt Collection Practices Act (FDCPA) (full text available here) is the primary U.S. law protecting consumers in the United States against harassing, abusive and unfair debt collectors. While the FDCPA does not directly mention social media or networking, there is existing language that should apply:

§ 803. Definitions (15 USC 1692a)

(2) The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium.

This section would seemingly include social media posts as “communication” is not limited to print or voice.

§ 805. Communication in connection with debt collection (15 USC 1692c)

(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post-judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

This section should apply to general social media posts by a debt collector, such as on a debtor’s Facebook Wall or a public Tweet, as the information would be viewable to third persons. However, it would not likely apply to private messages sent directly to a debtor.

§ 806. Harassment or abuse (15 USC 1692d)

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.

This section should apply to any harassing, oppressive or abusive conduct by a debt collector regardless of how done, including a posting on a social media site.

§ 809. Validation of debts (15 USC 1692g)

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-

Many debt collectors typically provide the information required by this provision in their initial communication with a debtor. As this section currently reads, a debt collector could not send this information through social media as the provision specifically requires a “written notice”, which is not otherwise defined as thus would likely only include a printed notice, not anything sent electronically.

DEBTOR SUING FOR FACEBOOK POSTINGS

There has been at least one lawsuit, that has drawn public attention, by a debtor against a debt collector for posting information on Facebook. Melanie Beacham, a Florida resident who was $362 behind on car payments sued MarkOne Finanical, LLC, a debt collection agency, after it started sending her, her family and friends messages through Facebook. The judge on the case ordered the debt collector to refrain from contacting the woman’s family or friends on Facebook. (Melanie Beacham vs. MarkOne Financial, LLC, In the Circuit Court of Sixth Judicial Circuit In and For Pinellas County, State of Florida, Civil Division, Case No 10-12883CI-15).

CONCLUSION

Social media has now become an integral part of the daily lives of millions of Americans. The FDCPA specifically addresses written and telephone communications; it has not kept up with technology, which now has the ability for information to be sent instantly to millions of people with little to no cost, The FDCPA only permits a debtor to collect only one statutory damage amount against a debt collector regardless of the number of violations by the debt collector. Telephone calls and mailings only reach a few people; social networking sites extend this exponentially. A risk-reward analysis will likely lead more debt collectors to use social networks to collect a debt; the potential of obtaining money “illegally” for many debts will outweigh the costs even if a debtor pursues a FDCPA claim.

It is time that Congress, the FTC and the CFPB catch up to technology. While some states are updating their own consumer protection laws, a federal framework is needed, both for debtors and collectors, so each will know what is and what is not permitted on social networking sites. Specific federal laws, rules and regulations should be enacted to protect debtors on social media. In addition, as the ability to spread a message has grown immensely, the penalties against debt collectors should also be increased. Other consumer protection laws, besides the FDCPA, such as the Telephone Consumer Protection Act (TCPA) and the Fair Credit Reporting Act (FCRA) also need to be updated. Moreover, there needs to be unity between these laws so as to best protect debtors as well as provide guidance to debt collectors so they can obey the laws.

Links to the other Parts of the Series: Social Media and Debt Collection

Part 1: Social Media and Debt Collection: Facebook and Twitter

Part 2: Social Media and Debt Collection: Limited in the United Kingdom

Other Lapin Law Offices’ Posts Regarding Debt Collection

An Update on H.R. 3035 (The Mobile Informational Call Act of 2011) and a Call to Action

Common Misperceptions About Credit Scores

Credit Scores: Why Are They So Important and How Are They Calculated

The Consumer Financial Protection Bureau (CFPB) – Will It Be Better for Consumers or Debt Collectors?

Proposed Act Would Permit Debt Collectors to Use Auto-Dialers to Call Cellular Telephones

Lapin Law Offices represents consumers harassed or abused by debt collectors. You can learn more about us and about your rights by calling us at 402-421-8033 (24/7) or on our websites: LapinLawOffices.com or StopBadCollectors.com.

Lapin Law Offices’ focus, since the beginning, is to represent clients with caring, passion and dedication.

Jill L. Tinnelly has been with Lapin Law Offices since the very beginning and has been my Legal Assistant for over 13 years. Staci L. Williams has been here since 2009, initially starting as our Receptionist and now as a Legal Assistant.

This year has brought many significant changes to Lapin Law Offices:

Patrick M. Driver and Tregg R. Lunn joined the office. Both bring considerable experience and skill. They also fully embrace the idea of caring, passion, dedicated legal representation.

Changed our logo (again).

Updated our website (www.lapinlawoffices.com) and started a blog.

Added three new areas of practice:

Claims against abusive debt collectors under the Fair Debt Collection Practices Act (FDCPA)

Claims under the Telephone Consumer Protection Act (TCPA) for telephone and fax abuses; and

Unfair credit reporting acts in violation of the Fair Credit Reporting Act (FCRA).

Created a new website, www.StopBadCollectors.com, regarding our new practice areas.

We will continue to evolve to meet the needs of injured, abused and disabled persons throughout Nebraska while staying committed to representing clients with caring, passion and dedication.

Thank you for everyone who has supported us, especially our family and friends, and we look forward to many more anniversaries.

Sincerely,

Jeffrey B. Lapin

Lapin Law Offices represents persons injured, whether physically, emotionally or financially. We also handle Social Security Disability claims and unemployment compensation appeals. Lapin Law Offices represents clients throughout Nebraska including such cities as Lincoln, Beatrice, Seward, Fairbury, York, Aurora, Omaha, Grand Island, Columbus, Kearney, Hastings, Nebraska City, Norfolk, North Platte, and counties such as Lancaster, Gage, Seward, Saunders, Cass, York, Hall, Platte, Buffalo, Lincoln, Madison, Douglas and Sarpy.

WITHDRAWAL OF H.R. 3035

H.R. 3035 was co-sponsored by Representatives Lee Terry (R-NE) and Edolphus Towns (D-NY). On December 14, 2011, they sent a joint letter to the House Energy and Commerce Committee Chairman Fred Upton, whose committee the bill had been referred to for consideration, requesting the bill essentially be killed. Here is the full text of their letter:

We would like to take this opportunity to thank you and Chairman Walden, for allowing the hearing to occur on the merits of HR 3035. The hearing really helped to bring to our attention the issue of out of date telecommunications policy and how we need to begin to modernize current law.

However, what we have learned is there is no hope for this legislation. We have heard from our constituents. They are concerned about what they believe will happen should this legislation become law. We have convened meetings with numerous consumer groups, as well as other organizations who have an interest in the legislation, but we have been unable to reach any kind of consensus on language that bans unwanted cell phone calls, while allowing calls that are consented to.

In an attempt to thread the needle and address the issues that have been brought before us, it is clear that this bill cannot be improved in a manner that will address the concerns of those involved. Therefore, we ask that HR 3035 not be advanced by the committee.

Thank you in advance for your consideration.

Sincerely,

Lee Terry

Edolphus “Ed” Towns

In an interview with the Omaha World Herald regarding the withdrawal of H.R. 3035, Congressman Terry stated: “We’re driving a stake through its heart. Dead. Done. Buried.” He added, that despite his efforts to make the bill more acceptable to consumer advocates and other legislators, “There was just no language where they would be comfortable and I could be assured that people wouldn’t receive unwanted calls,” and that it was clear that public perception of the bill was not good. (Source: Omaha World Herald: Terry kills robocalls bill).

VICTORY FOR CONSUMERS

The withdrawal of H.R. 3035 is victory for consumers as telemarketers and debt collectors cannot robodial their cell phones without express consent. Congressman’s Terry’s letters and comments indicate it was public perception, rather than political attacks, that swayed his decision to stop H.R. 3035. This shows that consumers can make a difference and everyone’s voice does still count.

Lapin Law Offices represents consumers harassed or abused by debt collectors and telemarketers under the Fair Debt Collection Practices Act (FDCPA) and TCPA. You can learn more by calling us at 402-421-8033 or through our websites: Lapin Law Offices or StopBadCollectors.com.

SUPPORTERS OF THE ACT

The Act was introduced by Representatives Lee Terry (R-NE) and Edolphus Towns (D-NY). It also had nine co-sponsors. Rep. Terry, on his website, posted his reasons for co-sponsoring the Act. He states:

The Mobile Informational Call Act reflects the reality of the day. Forty percent of Americans now use mobile phones as their primary or exclusive communications device. People need to be reached in real time if their flight is delayed, their credit card numbers have been compromised, their medications have been recalled, their electricity restored, and for other time-sensitive information they may be interested in. This bill will help consumers receive timely and accurate information as soon as possible.

The bill strictly prohibits telephone solicitations and businesses must have prior express consent to contact consumers. The President has made a similar proposal in his deficit reduction plan.

The full statement can be found here. These statements seem to indicate the changes are primarily for the benefit of the consumer rather than financial services industries, such as debt collectors. However, consumers can already permit calls to their cell phones by providing that number to entities or by affirmatively consenting to these calls. Consent should not be implied; it should require a knowingly, voluntary act by the consumer. At the initial hearings on H.R. 3035, the supporters outnumbered those opposing as well as having more financial resources at their disposal.

NEW OPPOSITION

Bipartisan opposition has arisen against the Act.As part of the National Association of Attorneys General (NAAG), Attorneys General in 48 states signed a letter urging Congress to reject H.R. 3035.

The letter states, in part:

Our offices protect consumers by enforcing the TCPA and state laws concerning telephone solicitations, automated calls, junk faxes and text messages. Over at least the last 22 years, Congress and the states have enacted strong laws to protect consumers from unwanted and instrusive robocalls. Currently, federal law bans robocalls to cell phones unless the consumer gives prior express consent. H.R. 3035 would change the law and undermine federal and state efforts to shield consumers from a flood of solicitation, marketing, debt collection and other unwanted calls and texts to their cell phones. In the process, H.R. 3035 also would shift the cost of these calls – such as debt collection and marketing calls – to consumers, placing a significant burden on low income consumers. Furthermore, H.R. 3035 will create obstacles to effective enforcement of state consumer protection laws. H.R. 3035 goes far beyond the stated goal of giving debt collectors a new avenue to contact debtors and unnecessarily allows businesses to robocall or text consumers without the consumers’ prior express consent.

We urge you to reject H.R. 3035 as harmful to consumers.

In addition, the Attorney Generals requested two changes to the TCPA to better protect consumers: (1) protect consumers’ privacy by clarifying that prior express consent to robocalls must be obtained in writing; and (2) eliminate any suggestion from the TCPA that state statutes regulating interstate telephone and fax harassment are preempted. The full letter is available here.

The only two attorney generals who did not sign are Nebraska’s Jon Bruning and Virginia’s Kenneth T. Cuccinelli, II. According to statements made to the Lincoln Journal Star by Shannon Kingery a spokeswoman for Jon Bruning, he did not sign the letter because: ”We generally do not sign on to this type of letter until we know what the final bill looks like.” Hopefully Mr. Bruning, after any changes are made, will oppose the Mobile Informational Call Act of 2011.

WHAT YOU CAN DO

H.R. 3035 will significantly hurt consumers as it further burdens consumers. As the Attorney Generals and others have said, there are other less intrusive and burdensome ways to collect debt. Changing the TCPA, without increasing other consumer protections, will make it more likely debt collectors will harass and abuse consumers.

Lapin Law Offices urges you to contact your members of Congress and ask them to oppose H.R. 3035, the Mobile Informational Call Act of 2011. You can do so by going to your Congressional members website, posting on OpenCongress.org, by mail or phone call. Nebraska’s Congressional members contact information may be found by clicking on their name below:

Representative Lee Terry

Representative Jeff Fortenberry

Representative Adrian Smith

Senator Ben Nelson

Senator Mike Johanns

In addition, people in Nebraska and Virginia are urged to contact their Attorney Generals and request they oppose H.R. 3035:

Nebraska Attorney General Jon Bruning

Virigina Attorney General Kenneth T. Cuccinelli, II

Lapin Law Offices represents consumers harassed or abused by debt collectors. You can learn more about us and about your rights by calling us at 402-421-8033 or on our websites: Lapin Law Offices or StopBadCollectors.com.

The United Kingdom’s Office of Fair Trading (OFT) performs the same basic activities as the United States’ Federal Trade Commission’s (FTC) Bureau of Consumer Protection – Division of Financial Practices and the Consumer Financial Protection Bureau (CFPB), which is to draft and enforce regulations concerning debt collection. As stated in the Frequently Asked Questions on the OFT website:

Our mission is to make markets work well for consumers. . . .

We aim to achieve this by: The enforcement of consumer protection legislation in matters that affect consumers in general.

While there are differences, the United States and United Kingdom have similar laws regarding debt collection. Both countries prevent debt collectors from using tactics that are considered unfair. The United Kingdom tends to use the broader term “improper” while the United States’ Fair Debt Collection Practices Act (FDCPA), uses the words “harass, oppress, or abuse.”

REVISED OFT DEBT COLLECTION GUIDANCE

In October of 2011, the OFT updated its Debt Collection Practices: OFT guidance for all businesses engaged in the recovery of consumer credit debts- July 2003 (updated October 2011). (Full text available here). As stated in the Foreward to the Debt Collection Practices:

The primary aim of this guidance is to provide clarity for licensed businesses engaging in the recovery of consumer credit debts as to the standards the Office of Fair Trading (OFT) expects of businesses engaging in such activities.

Although the guidance is called ‘debt collection’ guidance, it has much broader application than simply covering the activities of third party debt collectors. As such, it sets out the standards expected of ALL parties engaging in the recovery of consumer credit debts.

The Debt Collection Practices identifies conduct that, in the OFT’s view, constitute unfair or improper debt collection practices. It also provides some illustrative examples of what would be improper.

In the newly revised edition, the Debt Collection Practices specifically addresses debt collection and social media. As set forth in Chapter 3, “Unfair or Improper Business Practices” it states:

Physical/psychological harassment

3.6 Putting undue pressure on debtors or relevant third parties (for example, appointed representatives) is considered to be oppressive and an unfair or improper practice.

3.7 Examples of unfair or improper practices are as follows:

p. inappropriately disclosing, or threatening to disclose, debt details to third parties

q. acting in a way likely to be publicly embarrassing to the debtor, either deliberately or negligently (that is to say, through lack of care)

For example:

• posting messages on social networking sites in a way that might potentially reveal that an identifiable person is being pursued for the repayment of a debt.

With regard to the inclusion of social networking websites in its updated Debt Collection Practices, David Fisher, the OFT’s Director of Consumer Credit, stated in a press release:

In the present economic climate, with many people, including those who may be particularly vulnerable, in financial difficulties, it is crucial they are treated fairly by companies recovering their debts. (Source: http://www.oft.gov.uk/news-and-updates/press/2011/113-11).

In addition, a spokesperson for the OFT said to the Daily Mail (Debt collectors banned from hounding people on Facebook or Twitter as it causes ‘stress and embarrassment’):

Contacting debtors through social networking sites was a new take on the old method of placing a postcard through the door. . .

‘It’s unfair and improper and it makes that private correspondence public. It causes stress and embarrassment to the debtor. It is not good business practice to do that.’

Both the public comments and the placement of the social networking prohibition within the Debt Collection Practices seem to indicate that the possibility of psychological stress on a debtor by a debt collector posting debt information on a social networking site was the primary reason for prohibiting this conduct.

The final Part of this Series, Social Media and Debt Collection: The United States, will discuss current United States law as it relates to debt collectors using social media to collect a debt.

Links to the other Parts of the Series: Social Media and Debt Collection

Part 1: Social Media and Debt Collection: Facebook and Twitter

Part 3: Social Media and Debt Collection: The United States

Other Lapin Law Offices’ Posts Regarding Debt Collection

An Update on H.R. 3035 (The Mobile Informational Call Act of 2011) and a Call to Action

Common Misperceptions About Credit Scores

Credit Scores: Why Are They So Important and How Are They Calculated

The Consumer Financial Protection Bureau (CFPB) – Will It Be Better for Consumers or Debt Collectors?

Proposed Act Would Permit Debt Collectors to Use Auto-Dialers to Call Cellular Telephones

Lapin Law Offices represents consumers harassed or abused by debt collectors. You can learn more about us and about your rights by calling us at 402-421-8033 (24/7) or on our websites: LapinLawOffices.com or StopBadCollectors.com.

INTRODUCTION

Social networking sites and services have significantly changed both the speed and reach of information. Online posts can go “viral” and be viewed by millions within seconds. These sites have the potential to be abused and permit “bullying,” abuse and harassment. A person has limited control over what get posted about them. Social networking sites and services are likely the next arena in which debt collectors will use to attempt to collect a debt. Consider a debt collector posting on debtor’s Facebook page that the person is someone who does not pay their debts with a subject line of “Deadbeat?” How will this debtor-user react? What if the debt allegedly owed is not actually the debtor’s? What if the debtor disputes the debt? People should not be forced to wage “war” against a debt collector on or through a social networking site or service; there are laws that protect debtors and if violated, a debtor has the right to sue a debt collector. Debt collectors also have the ability, assuming they have complied with the law, to sue a debtor to collect a debt. No one really disputes a debt collectors right to collect a debt using lawful methods. These methods do not include threats, abusive or harassment.

Facebook, with approximately 800 million active users, is widely considered the most popular social networking sites. (Source: Facebook Statistics). Facebook’s Terms, as of the date of this post, have numerous provisions that should prevent debt collectors from using Facebook to attempt to collect a debt from a debtor-user in a way that would violate the Fair Debt Collection Practices Act (FDCPA) prohibition against using abusive and harassing tactics to collect a debt. All Facebook users are bound by its Statement of Rights and Responsibilities. Some of these rights and responsibilities include:

This Statement of Rights and Responsibilities (Statement) derives from the Facebook Principles, and governs our relationship with users and others who interact with Facebook. By using or accessing Facebook, you agree to this Statement. . . .

3. Safety.

We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:

6. You will not bully, intimidate, or harass any user.

7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.

10. You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.

5. Protecting Other People’s Rights

We respect other people’s rights, and expect you to do the same.

1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.

7. If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.

8. You will not post anyone’s identification documents or sensitive financial information on Facebook.

Facebook’s full Statement of Rights and Responsibilities are available here.

Twitter with reportedly over 100 hundred million active users is another of the most popular social networking sites/ services. Twitter claims that there are approximately 1 billions “tweets” per week. (Sources: Twitter: About; Twitter Blog: #numbers; PcMag.com: Twitter Continues to Soar in Popularity, Site’s Numbers Reveal). Twitter is clear about its reach and scope:

What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!

Some of Twitter’s Terms and Rules are:

You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof.

Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.

Violence and Threats: You may not publish or post direct, specific threats of violence against others.

Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.

Twitter’s full Terms of Service (http://twitter.com/tos) and The Twitter Rules (http://support.twitter.com/articles/18311-the-twitter-rules)) may be viewed on Twitter’s website.

Limited Protection Under a Social Media Site’s Terms and Conditions

Both Facebook and Twitter do try to protect their users against harassment, abuse and threats. However, this protection is very limited. The most Facebook or Twitter can do is ban a user and remove posts. This is not a very big deterrent and may be too late to protect a debtor from the embarrassment about a debt- related post. In addition, an unscrupulous debt collector could simply open an account under a different name and continue unlawful activity. Facebook and Twitter terms and conditions are, first and foremost, to protect themselves rather than their users. Finally, Facebook and Twitter are private companies, which can change or modify their Terms and rules at any time removing their protections from debt collectors desiring to post or tweet unlawful debt information.

While a social network site or service, such as Facebook and Twitter, may not be able to really protect or punish unlawful debt collection activity, postings on their sites may violate a law, rule and regulation subjecting the debt collector to penalties. Part 2 of this Series, Social Media and Debt Collection: Limited in the United Kingdom, will discuss new prohibitions in the United Kingdom about debt collection activities and social networking sites.

Links to the other Parts of the Series: Social Media and Debt Collection

Part 2: Social Media and Debt Collection: Limited in the United Kingdom

Part 3: Social Media and Debt Collection: The United States

Other Lapin Law Offices’ Posts Regarding Debt Collection

An Update on H.R. 3035 (The Mobile Informational Call Act of 2011) and a Call to Action

Common Misperceptions About Credit Scores

Credit Scores: Why Are They So Important and How Are They Calculated

The Consumer Financial Protection Bureau (CFPB) – Will It Be Better for Consumers or Debt Collectors?

Proposed Act Would Permit Debt Collectors to Use Auto-Dialers to Call Cellular Telephones

Lapin Law Offices represents consumers harassed or abused by debt collectors. You can learn more about us and about your rights by calling us at 402-421-8033 (24/7) or on our websites: LapinLawOffices.com or StopBadCollectors.com.