Consumer Protection Litigation

Perkins Coie Partner, Barak Cohen was quoted in VIXIO PaymentsCompliance “CFPB Opens Gate To Regulated Open Banking In U.S.” regarding the new rule on third-party access to consumer financial data the Consumer Financial Protection Bureau (CFPB) will begin developing in the United States.

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Ben Purser, chief risk officer for mortgage lender, Roundpoint Mortgage Servicing Corporation, and Barak Cohen, partner in Perkins Coie’s White Collar & Investigations practice and lead for the firm’s Commercial Litigation in Washington, D.C., discuss the challenges of legal compliance and risk in an industry that has been directly affected by two global financial crises

The Federal Fair Debt Collection Practices Act (FDCPA) is the leading debt collection practices act, serving as the lynchpin of federal consumer protections in the area of debt collection as well as serving as a model for numerous state enactments. Not surprisingly, litigation often focuses on the crucial questions of who is a “debt collector” and what is “debt collection” for purposes of the FDCPA. This area of law has received close scrutiny in recent years with published cases from the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.

In Obduskey v. McCarthy & Holthus LLP, the Supreme Court had to decide whether “one principally involved in ‘the enforcement of security interests’ is . . . a debt collector” for purposes of the FDCPA. Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029, 1031 (2019). The Court concluded that the statutory language of the FDCPA’s definition of “debt collector” places:


Continue Reading The Ninth Circuit Clarifies Its Approach in FDCPA Cases Concerning Foreclosure

On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act, in response to the national emergency arising from the COVID-19 pandemic. Four key provisions of the CARES Act are likely to affect mortgage loan servicers: (1) credit protection; (2) a moratorium on foreclosures; (3) forbearance on mortgage payments; and (4) a moratorium on eviction filings. Compliance with the CARES Act may be straightforward for moratoriums but more challenging for credit reporting and regulatory compliance. This post provides an updated summary of salient portions of the CARES Act and identifies potential regulatory compliance pitfalls.
Continue Reading CARES Act Regulatory Considerations for Mortgage Servicers

Under California’s Homeowner Bill of Rights (HBOR), if a borrower obtains injunctive relief or is awarded damages pursuant to Civil Code Section 2924.12(h), the court may award the prevailing borrower reasonable attorney’s fees and costs.

In cases where the court ultimately determines that the mortgage lender or servicer violated the provision of the HBOR outlined in Civ. Code Section 2924.12(a)(1) and (b), the borrower would undoubtedly be entitled to recover attorney’s fees and costs.  However, HBOR does not make clear whether the borrower would be entitled to attorney’s fees and costs in cases where the borrower applies for injunctive relief before the court makes an ultimate decision on the merits of the case. Specifically, the statute does not clarify when (i.e., in what phase of the litigation) the borrower is entitled to an award of fees and costs, nor does it distinguish between permanent and preliminary injunctions. And in the few iterations of the HBOR since it became effective in 2013, Civil Code Section 2924.12 has remained largely unaltered, substantively, on attorney fee and costs rewards for injunctive relief.
Continue Reading California’s Third District Court of Appeal Expands a Borrower’s Right to Attorney’s Fees Under the Homeowner Bill of Rights

The California Consumer Privacy Act (CCPA) went into effect on January 1, 2020. Although enforcement cannot begin until July, private plaintiffs have started to bring claims under the law’s limited private right of action since the beginning of the year. Despite the CCPA going into effect just three months ago, it is already having an

As companies across all industries including consumer finance, prepare to face the widespread economic effects of the coronavirus (COVID-19) pandemic, ensuring access to liquidity during this time is a key strategy in addressing the challenges posed by COVID-19. This update provides guidance to companies evaluating whether and when to borrow on an existing line of

On Friday the 13th of September 2019—the last day of California’s Legislative Session—California lawmakers updated, finalized and sent six bills that would amend the California Consumer Privacy Act (CCPA) to Governor Newsom’s desk for signature. Despite months of efforts from various groups, the CCPA made it through the legislative session with relatively fewer changes than

In Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329, 333 (7th Cir. 2019), the Seventh Circuit upheld the district court’s holding that a plaintiff lacked standing to pursue a claim under the Fair Debt Collection Practices Act (FDCPA) against a debt collector because the plaintiff could not establish that any damages were caused by the FDCPA violation.

The FDCPA requires a debt collector to give written notice to a consumer within five days of its initial communication. 15 U.S.C. § 1692g(a). The notice must include, among other things, a description of two mechanisms that the debtor can use to verify his or her debt in writing. Id. The FDCPA also renders a debt collector liable for “fail[ing] to comply with any provision of [the Act].” Id. § 1692k(a).
Continue Reading Seventh Circuit’s “No Harm, No Foul” Holding Requires Concrete Harm in Consumer Lending Cases

The CCPA exempts processing of personal information “pursuant to” the Gramm-Leach-Bliley Act (GLBA). Businesses must analyze their processing activities, including the types of personal information collected and how they are used, to determine which activities are conducted “pursuant to” the GLBA and which fall outside this limited scope and assess how to mitigate risk. Join