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1 Page 1 of 6 Bassford Bulletin FDCPA/FCRA/ TCPA/CFPB January 22, 2014 Bassford Remele, P.A. 33 South Sixth Street, Suite 3800 Minneapolis, Minnesota Greetings! Welcome again to the Bassford Bulletin - FDCPA/FCRA/TCPA/CFPB. We designed this e-newsletter with our valued clients in mind. With developments in the credit and collection industry happening at an everincreasing rate, we wanted to create a timely way to deliver updates straight to your electronic desktop. We hope you find this information useful and valuable, and we are always open to your feedback, suggestions and input. Click here for a printable copy of this month's Bulletin. Sincerely, The Bassford Remele FDCPA/FCRA/TCPA/CFPB Group FDCPA: A Percentage-Based Fee is Not a "Cost of Collection" By: Jessica L. Klander The Eleventh Circuit Court of Appeals held that a collection agency violated the FDCPA when it charged a percentage of the principal balance as a collection fee, holding that it was collecting an amount that was not expressly authorized by the agreement creating the debt or permitted by law. The debtor incurred a medical debt. The debtor's agreement with the medical provider stated that if the account was not paid, the creditor could send it to collections and the debtor was responsible for paying "all costs of collection." When the debtor failed to pay his bill it was transferred to the collection agency for collections. The collection agency had an agreement with the creditor that it could assess a 33% "collection fee" to each account. When the collection agency assessed the fee to the debtor's account, the debtor sued, claiming that the percentage-based fee was a violation of the FDCPA because it was the collection of an amount that was not authorized by the agreement creating the debt. The Eleventh Circuit agreed, holding that the percentage-based fee was a violation of the FDCPA. The Court concluded that the fee was not authorized by the debtor's agreement because it did not correlate to the "cost of collection." Although the Court determined Noteworthy Damages Award -- $3.5 Million The FTC issues its secondlargest FCRA penalty, requiring a check authorization service and its associated collection agency to pay a $3.5 million settlement for alleged FCRA violations. The check authorization company is a credit reporting agency that compiles consumers' personal information to help retailers determine whether they should accept consumers' checks. Under the FCRA, consumers whose checks are denied based on information the company provided, have the right to dispute that information. The FTC's complaint alleged that the company failed to follow

2 Page 2 of 6 that the fee was a violation of the FDCPA, it noted that "it is not to say that [the debtor] and [creditor] could not have formed an agreement allowing for the collection of the percentage-based fee" but that in this case the parties had not agreed to it. Bradley v. Franklin Collection Serv., Inc., , 2014 WL (11th Cir. Jan. 2, 2014). The FDCPA Does Not Apply to Communications with Credit Reporting Agencies By: Jessica L. Klander A Minnesota District Court held that a collection agency's communication with a credit reporting agency did not constitute to a communication in connection with the collection of debt under the FDCPA. After a credit reporting agency notified the collection agency of a dispute it received from the debtor, the collection agency provided it with updated information. The information provided by the collection agency to the credit reporting agency allegedly failed to reflect the debt was disputed. The debtor thereafter sued, claiming that the collection agency's communication with the credit reporting agency amounted to a FDCPA violation because it failed to reflect that the debt was disputed. The Court dismissed the debtor's claim, holding that the FDCPA did not apply. The Court concluded that the FDCPA did not apply to the communications between the collection agency and the credit reporting agency because it was not "in connection with the collection of any debt". The Court reasoned that "it makes little sense to view the FCRA verification as a prohibited attempt at debt collection in violation of the FDCPA" because the collection agency was not collecting a debt but responding to a debt verification notice in order to avoid violating the FCRA. In addition, the Court held that even if the FDCPA applied, the communication was not misleading because the credit reporting agency already knew the debt was in dispute and therefore any misrepresentation was immaterial. McIvor v. Credit Control Services, Inc., No , 2013 WL (D. Minn. Dec. 17, 2013). The CFPB Requires Financial Institutions to Publicly Disclose Campus Financial Agreements By: Jessica L. Klander On December 17, 2013, the CFPB issued a press release stating that it would require financial institutions to publicly disclose agreements with colleges and universities to market debit, prepaid and other products to students. Currently institutions are only required to make these disclosures about college credit cards. "Students and their families should know if their school, whether well-intentioned or not, is being compensated to encourage students to use a specific account or card product," said CFPB Director Richard Cordray. "When financial institutions secretly give kickbacks to schools, they are engaging in risky practices." In 2009, Congress passed the Credit Card Accountability Responsibility and Disclosure Act which required issuers to disclose the terms and conditions of any college credit card agreements, the number of new credit card accounts, and the compensation paid by issuers to institutes of higher education. In its recent annual report, proper dispute procedures, including refusing to investigate disputes, correct errors, and failing to have reasonable procedures in place to ensure accuracy of the information. In addition, the FTC alleged that the company's associated collection agency violated the requirements of the FTC's furnisher rule because it failed to ensure the accuracy and integrity of the information provided. The settlement, in addition to the $3.5 million, requires the companies to alter their business practices to comply with the FCRA and the furnisher rule. Bassford News L-R: Christopher Morris, Michelle Kreidler Dove, Jessica Klander, Susan Gustad and Michael Klutho Bassford Remele is proud to be recognized as a 2014 Top Ranked Law Firm based on AV Preeminent Martindale- Hubbell Lawyer Ratings. To achieve this recognition, one out of three of our lawyers have achieved the AV Preeminent Peer Review Rating. This rating indicates the rated lawyers have been deemed by their peers to have demonstrated the highest level of ethical standards and legal ability. Quick Links January 2014 Bulletin November 2013 Bulletin

3 Page 3 of 6 the CFPB found that college card agreements have declined by 41% between 2009 and The report also found that institutions are paid less by credit card issuers than they were in In addition, since the 2009 regulation went into effect, fewer new college accounts are being opened despite the fact that the number of college card issuers has increased. On the heels of the 2009 regulation, the CFPB launched an expanded inquiry this year into the financial products marketed to students enrolled in institutions of higher education. The CFPB has called for greater transparency and now requires that these relationships be disclosed. October 2013 Bulletin September 2013 Bulletin August 2013 Bulletin July 2013 Bulletin June 2013 Bulletin May 2013 Bulletin The CFPB Sues CashCall for Illegal Online Loan Servicing On December 16, 2013, the CFPB announced that it took its first action against an online loan servicer for collecting money that consumers did not owe. The CFPB alleged that the defendants engaged in unfair and deceptive practices including illegally debiting consumer checking accounts for loans that were void. The CFPB alleges that the loan servicer entered into an arrangement with Western Sky Financial, a South Dakota-based online lender. Western Sky Financial asserted that state law did not apply to its business because it was based on an Indian reservation and owned by a member of the Cheyenne tribe. The relationship with the tribe, however, did not exempt Western Sky from complying with state laws when making loans over the internet to consumers in various states. The loans issued by the entities typically ranged from $850 to $10,000 and included upfront fees, lengthy repayment terms, and annual interest rates from nearly 90% to 343%. Many consumers signed loan agreements permitting payments to be debited directly from their bank accounts. In September 2013, Western Sky stopped making loans and began to shut down its business after several states began investigations and court actions. The loan servicer and its collection agency continued to take monthly installment payments from customers' bank accounts in connection with those loans. The CFPB's complaint alleges that the defendants violated the CFPB's prohibition against unfair and deceptive practices. The CFPB argues that these loans were in violation of law because the loans were void and therefore the defendants' were collecting money that consumers did not owe. This marks the first CFPB online lending lawsuit. The CFPB notes that "in filing this suit today, the Bureau has worked closely and collaboratively with state attorneys general and banking regulators. Some of these state officials are also filing their own lawsuits and announcing formal investigations today; others are already in litigation." CFPB Orders GE CareCredit to Refund $34.1 Million for Deceptive Healthcare Credit Card Enrollment On December 10, 2013, the CFPB ordered GE Capital and its subsidiary, CareCredit, to refund $34.1 million to more than one million consumers who were allegedly victims of "deceptive credit card enrollment tactics." The CFPB alleges that consumers were enrolled by medical providers across the country for "interest free" CareCredit cards that were actually accruing interest that

4 Page 4 of 6 would kick in after the full balance was not paid at the end of a promotional period. Approximately 85% of the borrowers were placed in deferred-interest financing plans. Under this "no interest if paid in full plan," consumers made monthly payments while the CareCredit assessed 26.99% annual interest on a consumer's balance throughout a promotional period, which ranged from 6-24 months. If any portion of the balance was not paid when the promotional period ended, the consumer became liable for all of the accrued interest. The CFPB initiated its investigation after receiving hundreds of complaints from consumers. The CFPB found the practice deceptive because consumers who signed up for the credit card frequently received inadequate explanations and did not understand how they could avoid deferred interest, penalties and fees. In addition, the CFPB found that the conduct involved deceptive enrollment processes, inadequate disclosures and poorly -trained staff. As a result, the CFPB has ordered that GE Capital Retail Bank and CareCredit create a $34.1 million reimbursement fund, enhance their consumer disclosures, and improve the consumer experience. "Medical debt is already a big problem for many Americans. Poor credit card transparencies should not be making the problem even worse," said CFPB Director Richard Cordray. "Deferred-interest products can be risky for consumers in the best of circumstances, and today's action ensures that CareCredit will no longer profit from consumer confusion. The Bureau will not tolerate financial companies that take advantage of patients and their loved ones." CFPB Ombudsman Calls for More Clarity in Examination Process The CFPB Ombudsman released its second annual report highlighting areas and functions that the CFPB could improve upon, including its examination process and the functionality of its website. The report also recommended that the CFPB share how a financial entity may raise concerns about the examination process by providing specific information on who composes the examination team. It further recommended that the CFPB clarify what may be expected during the examination life-cycle. Last year, the Ombudsman suggested that the CFPB review its policy of sending enforcement lawyers to examinations of financial institutions. The CFPB announced in October that it was ending that practice.

5 Page 5 of 6 Consumer Financial Protection Bureau Preparation & Response Team The Consumer Financial Protection Bureau (CFPB) is an independent federal agency housed within the Federal Reserve System. Of critical importance to the collection industry, the CFPB has enforcement and supervisory authority over collection professionals, as well as rule-making authority under the Fair Debt Collection Practices Act (FDCPA). The CFPB has expansive power, including the ability to create and enforce its own regulations as well as enforce compliance under the FDCPA, Fair Credit Reporting Act, Truth in Lending Act, and Gramm-Leach-Bliley Act. As part of its broad enforcement powers the CFPB: Conducts investigations of collection agencies auditing compliance with applicable law. Conducts hearings and adjudication proceedings. Issues cease and desist orders. Commences civil actions to impose monetary penalties and equitable relief. Penalties can include rescission of contracts, monetary restitution, public notification of violations, limits on collection activities, and civil penalties ranging from $5,000 to $1,000,000 per day. The investigatory audits performed by the CFPB are broad in scope and can last between six to eight weeks or longer. Given the exhaustive approach of the audits and the risk of high civil penalties, the industry has recommended that collection professionals undergo supervisory examinations of their own processes in advance of a CFPB audit to ensure compliance. Bassford Remele is here to help. Our CFPB Practice Group is dedicated to creditors' rights related to the CFPB. Comprised of attorneys who regularly defend credit professionals and who possess the knowledge and experience necessary to guide agencies through the new regulations and compliance requirements under the CFPB, our Team can: Answer any questions you might have related to the CFPB. Provide guidance on compliance with the CFPB. Perform pre-audit consultation to decrease the risk of an adverse audit. The process may involve an initial review of the client's business records, policies and procedures, an on-site audit of the company's collection practices, consultations with the entity's management, compliance officers and compliance team, the development of additional policies and procedures to ensure CFPB compliance. If you have any questions related to the CFPB or about the services that Bassford Remele can provide, please do not hesitate to contact Michael Klutho or any member of the Team.

6 Page 6 of 6 About Our Law Firm Bassford Remele, A Professional Association, is a full-service litigation firm located in Minneapolis, Minnesota. Founded in 1882, the firm represents local, national, and international clients in all areas of civil litigation and alternative dispute resolution. Disclaimer The information you obtain from the Bassford Bulletin is not legal advice and does not establish an attorney/client relationship. Sending an to Bassford Remele, A Professional Association, is merely a request for information and does not establish an attorney/client relationship. The Firm cannot consider representing you until after we have confirmed that doing so will not create a conflict of interest. Any retention will be confirmed by an engagement letter. Unsolicited information sent to Bassford Remele, A Professional Association, by persons who are not clients of the firm is not subject to any duty of confidentiality on the part of Bassford Remele, A Professional Association. Forward This was sent to by Update Profile/ Address Instant removal with SafeUnsubscribe Privacy Policy. Bassford Remele, PA 33 South Sixth Street, Suite 3800 Minneapolis MN 55402

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