Wisconsin-Consumer Blog by Gordon Leech » Debt Collection

Unlawful Debt Collection by Text Message

Gordon Leech — Tue, 22 Oct 2013 15:40:37 +0000

Should a debt collection agency be permitted to send you a text message demanding payment or telling you to “call about an important matter”? The Federal Trade Commission says “No” because text messages like this don’t communicate the important consumer rights language required by such communications and consumers often have to pay for text messages.

Professor Anita Ramasastry, University of Washington Law Foundation, writes about this FTC enforcement action and why this practice should be prohibited in her post on Verdict, a Justia.com blog, at http://verdict.justia.com/2013/10/22/debt-collecting-text.

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ERISA Insurance Plan Cannot Recoup Benefits Against Insured’s Law Firm Says the 8th Circuit Court of Appeals

Gordon Leech — Fri, 14 Sep 2012 21:31:34 +0000

The federal court of appeals for the 8th Circuit recently decided an important case addressing whether an insurance plan could recoup payments it made for an insured against the insured’s law firm after the insured recovered for his claims. The Eighth Circuit rejected the plan’s claims against the law firm.

In Treasurer, Trustees of Drury Industries, Inc., v. Goding; Casey & Devoti, P.C., (8th Cir., No. 11-2885, 9/7/2012), an ERISA plan attempted to recoup against an insured’s law firm the benefits it paid out for the insured’s treatment after the insured recovered in a civil claim related to a slip and fall accident. The insured filed and obtained a discharge of the plan’s claim through bankruptcy. The plan then sued the insured’s law firm from the slip and fall claim. The Eighth Circuit held that the plan could not recover against the insured’s attorney under the contractual subrogation provision of the contract with the insured because the attorney was not party to the plan. The court also rejected the plan’s theory under equity and a state cause of action for conversion against the law firm.

Here is a link to the Justia summary and the decision: http://j.st/7Y4

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Supreme Court Balks & Consumers Win in First American Financial v. Edwards

Gordon Leech — Thu, 28 Jun 2012 18:41:00 +0000

Consumers and their attorneys were waiting with baited breath today for the decision by the U.S. Supreme Court in First American Financial v. Edwards. All breathed a sigh of relief today, June 28, 2012, when the high court of the nation decided not to decide this case, rejecting the appeal to the Supreme Court. Although the court initially said it would hear and issue a decision in the case, and the court waited until the last day of its term, the court found that the original basis for choosing to hear the case was mistaken and withdrew the certification of the case to the court.

This is actually a victory for consumers. The Ninth Circuit Court of Appeals, the lower court from which the case came, made a favorable decision for consumers, rejecting First American’s claim that a statute that provides for presumptive damages, known in the law as “statutory damages,” is unconstitutional. Had the Supreme Court agreed with First American, massive amounts of consumers would lose their day in court and it would have changed the landscape of consumer protection laws throughout the country.

In many consumer protection cases, the law provides that a court can award these presumptive or statutory damages where the consumer cannot prove actual damages. Congress has provided for statutory damages in consumer protection laws because violations cause harm beyond that inflicted on the particular consumer, it is a deterrent to break the law and actual damages can simply be hard to quantify and prove sometimes, though it is recognized that these violations do cause harm.

Some Federal protections that this decision could have affected include claims under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Real Estate Servicing Protection Act, Truth-in-Lending violations and others.

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