Consumer Law & Policy Blog

Assessing the Card Act five years after enactment

Remember the Credit Card Accountability Responsibility and Disclosure Act of 2009 (better known as the CARD Act)? The CARD Act made it more difficult for credit card companies to retroactively increase rates on existing balances or to impose large late fees, and it drastically curbed overlimit fees. The Act also sought to force credit card companies to better disclose their credit terms. Studies have found that the CARD Act has saved consumers money and reduced the cost of credit. The Act was enacted five years ago. In this article, Danielle Douglas reviews what she sees as its successes and shortcomings.

Non-disparagement clauses in consumer contracts and the Kleargear litigation

We have discussed the increasing use by companies of non-disparagement clauses in take-it-or-leave-it consumer contracts, where the consumer "agrees" not to say anything critical of a company from which it buys something  Go, for instance, here, discussing the use of these clauses in mortgage loan-modification contracts.

And we have discussed repeatedly (go, for instance, here and here) the Kleargear litigation, about the efforts of an online seller actually to use a non-disparagment clause against a consumer who had criticized the seller. The consumer fought back and recently won a default judgment against Kleargear. Now, as reported in this article by Martin Griffith, Kleargear's parent company says it will contest the default judgment. In Griffith's article, a Kleargear spokesperson is quoted as saying that "business transactions are exempt from First Amendment rights ... If a customer disagrees with any merchant ... policies, they are free to shop elsewhere."

How Long is the iTunes Contract?

32 feet, according to Omri Ben-Shahar's and Carl E. Schneider's new book, More Than You Wanted to Know.  To see a picture of the contract hanging from the ceiling of the Chicago Law School library two stories up (and it more than reaches the ground), watch the video here.

Tara Twomey on the Intersection of Reverse Mortgages and Bankruptcy

Tara Twomey of the National Consumer Law Center and National Consumer Bankruptcy Rights Center has written Crossing Paths: The Intersection of Reverse Mortgages and Bankruptcy.  Here is the abstract:

The senior population of the United States is expected to grow rapidly over the next twenty years.  Rather than enjoying their golden years, increasingly older Americans are struggling with less income, greater debt and insufficient retirement savings.  The average amount of debt held by seniors has soared over the last decade.  Many now rely on credit cards to cover their basic living expenses.  Rising mortgage debt has compromised the use of home equity as a retirement nest egg.  There are few easy solutions.  Two tools available to seniors to combat financial distress are reverse mortgages and bankruptcy.  Reverse mortgages allow seniors to tap their home equity to pay off outstanding debts or supplement monthly income.  Bankruptcy provides an opportunity to obtain a fresh start by discharging certain debts or adjusting one’s financial affairs.  The two options — reverse mortgages and bankruptcy — are not mutually exclusive.  This Article explores the intersection between reverse mortgages and bankruptcy and when they can or cannot work together to assist seniors facing financial distress.

The Hill Reports on the GOP's Continuing Effort to Cripple the CFPB

by Jeff Sovern

Here. Eleven proposed bills this time.  It creates an interesting contrast with the just issued CFPB's Supervisory Highlights report, which reports, for example, that the CFPB found that one collection firm violated debt collection laws approximately 17,000 times and a creditor has been selling debts on which consumers were no longer liable.  And those are only two examples from one law covered in the report; there are plenty of others. If the Republican House members get their way, what would stop those violations of the law from continuing?

Non-Disparagement Clauses in Loan Modifications

Mortgage servicers increasingly are including non-disparagement clauses in loan modification agreements, including ordinary loan modifications (i.e., those that are not negotiated in settlement of litigation). In at least one instance, Ocwen, the largest non-bank servicer of mortgages in the U.S. thanks to a number of acquisitions in recent years, sought to impose a non-disparagement provision that would have prevented the homeowners from making "any derogatory and/or disparaging comments about Ocwen."

The New York State Department of Financial Services has announced an investigation into Ocwen's use of these clauses.

"Guilty and Charged"

...is the catchy title of an NPR reporting series airing this week about the rise of new "debtors' prisons" as a result of state and local court practices across the country. According to the written summary of the story,

everyday, people go to jail because they failed to pay their court debts.

In Benton County, Washington, for example, jail records obtained by NPR and sampled over a four-month period in 2013, show that on a typical day, a quarter of the people who were in jail for misdemeanor offenses were there because they had failed to pay their court fines and fees.

We've blogged about the resurrection of debtors'-prison-style practices before (see, for instance, here and here). This week's NPR report sheds light on a more direct practice of jailing poor people who can't pay court fines and fees. Well worth a listen (see here for another installment of the report, and check out this fascinating graphic about court fees state-by-state).

FTC Shuts Down Texas-Based Debt Collector

According to the FTC, a Houston-based debt collection company called Goldman Schwartz, Inc., used insults, lies, and false threats of imprisonment to collect on payday loans. Under a settlement announced this week, the company’s owner will surrender his assets, approximately $550,000, to pay restitution to consumers who were charged unauthorized fees. The settlement also permanently bans the defendants (the company owner, two company managers, and several corporate entities) from debt collection.

The FTC’s press release explains that “[t]he debt collection operation did business nationwide, collecting primarily on payday loans. In some cases it owned the debt, and in others, it acted as a third-party collector. The operation was charged with multiple violations of both the FTC Act and the Fair Debt Collection Practices Act.”

Why Did Emmett Sullivan Issue an Injunction Against Vincent Gray?

by Paul Alan Levy  

In the discussion of yesterday’s decision rejecting a lawsuit by the DC Council against Mayor Vincent Gray, I found a procedural puzzlement.  The City Council sued Gray for a declaratory judgment and an injunction compelling him to comply with the Local Budget Autonomy Act; Gray counterclaimed for a declaratory judgment that the Act was invalid and an injunction against the Council, forbidding it from trying to enforce the Act.  And Judge Sullivan, although stressing that he felt sorrow at the conclusions that the law impelled him to draw, not only ruled in Gray’s favor on thelegal issue, but then issued an injunction against Gray, forbidding him from complying with the Budget Autonomy Act.

Who asked Judge Sullivan to issue that injunction against Gray?  Who, indeed, had standing to seek that injunction?  So far as I can see from the docket, there were no intervenors, and besides, given Gray’s legal position, it is hard to see how the judge could have found any likelihood that Gray would voluntarily comply with the DC statute, and thus a legal reason to issue an injunction against him.

And although Judge Sullivan’s declaratory judgment in Gray’s favor and against the council would be precedent should Gray’s successor take a different legal position, Judge Sullivan’s injunction against the mayor in his official capacity might well run against his successor under Federal Rule 25(d).  Why was that injunction legally justified? 

HHS Lawyer Responds to Criticism of His Threat to Blogger

by Paul Alan Levy

I wrote recently about a letter from an HHS lawyer, Dale Berkley, that appeared to threaten a blogger with a lawsuit for defamation because the blogger had published a mock interview with a an HHS official which, the demand letter said, could have misled readers into believing that the official had actually made the statements attributed to him.  I criticized the lawyer for raising the prospect of defamation considering the fact that the government cannot be defamed, and that any suit by the official would have been for his personal benefit.

Mr. Berkley has written to me, somewhat acknowledging that sending the letter was mistake, although standing up for the assertion that the mock interview was not sufficiently parodic to avoid being confusing (which is a fair point).  He seems to acknowledge that the reference to "defamation" was a bit too much; rather, he characterizes the subject blog post as a "disservice" to the official.  I am told by a supervisory attorney in his office that he and HHS do not plan to address the issue further.