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Living and working in Washington, D.C. these days is even more frustrating and depressing than usual. Our federal government appears to be doing its best Nero impression, although throwing gasoline, instead of fiddling, might be the better metaphor for Congressional action in response to our nation's economic meltdown. No place is this more obvious than our failure to effectively deal with our now, four year old housing crisis. Look around. Homes continue to be foreclosed at a record pace. Mortgage servicers remain incapable and unwilling to follow the law. Tens of millions of families have mortgages larger than the value of their homes. Low and moderate income communities have been stripped of billions of dollars of wealth. There's no sign of a housing recovery anywhere and even worse, no sign that our national government is doing anything real about it.
In this context, I once was genuinely pleased when a number of state AGs stepped into this void in an effort to address some of the worst mortgage servicing abuses and get substantial relief for consumers faced with the loss of their homes. While I still maintain some hope that the AGs will reach a settlement that genuinely helps homeowners, my optimism has been substantially diminished by the political gamesmanship that seems to have overshadowed the goal of actually reaching a fair and just result for consumers. It appears that the AGs are not immune from the disease that has made Washington politics so toxic and destructive.
Instead of debating the best strategy to help homeowners, the AG conversation has now unfortunately become a ridiculously defined battle of good versus evil; the question of who "wins" seemingly more important than actually achieving results for desperate homeowners. Maybe even more unfortunately - particularly for the long-term cause of consumer protection - a good faith effort to solve the servicing and foreclosure mess - has lead to terribly unwarranted and genuinely dispiriting attacks on the integrity of attorneys general with very long and proven track records of fighting for the best interests of consumers.
In the coming weeks, we will learn whether our senseless and toxic politics have eliminated our best chance for immediate help for homeowners. If it does - and I fear it might - I think we will all need to take a deep breath and think about what we want as consumer advocates and what we want from our political and justice system
Written by: Ira Rheingold, Executive Director, National Association of Consumer Advocates
Welcome fall! We at NACA are beginning to think about all of the wonderful membership opportunities that this new season will bring. The NCLC Consumer Conference, NACA’s Annual Meeting and Party, an exciting calendar of new webinars, and wrapping up our membership renewal campaign, just to name a few. Our current membership as of August 23 is 1717, with 59 new members since July 1, 2011.
You can still order NACA brochures. Topics available are foreclosure, auto fraud (English and Spanish), and debt collection. We believe this will be an excellent tool for member to use in their offices or with clients in an attempt to spread the words about consumer rights. To order brochures please click here.
As always, please let us know what you think of all the new benefits and features of NACA membership. Our goal is to support our members and help them succeed as they fight for the right of consumers every day. To submit comments or suggestion, please email Jetheda Hernandez, Director of Marketing & Development at Jetheda@naca.net.
Education and Training Update
In this section…
• Upcoming Education & Training Opportunities
• What's in the Works
Perspectives from the Bench: A discussion with Judge William Pocan
Date: October 4, 2011 - 1:00pm - 2:00pm
See map: Google Maps
This event is open to NACA Members OnlyTo register visit the Member’s Only section of the NACA website. Select the Event Registration link located in the left menu.
Registration Fee: $20
This event is not pre-approved for CLE Credit
NACA’s Perspectives from the Bench webinar series invites Judges from around the United States to sit down with Consumer Advocate attorneys to share his/her perspective/thoughts on consumer law cases. We welcome Judge William Pocan where he will provide insight into actions and arguments that can help Consumer Advocate Attorneys to improve the presentation of their case. Additionally, he will take questions from the NACA membership.
What You Will Learn
• Insight into tactics you can utilize to improve the presentation of your consumer law cases within state courts
* Judge Pocan will be sharing his insight and answering questions from the NACA membership. To ensure your question is addressed use the link http://www.surveymonkey.com/s/BFFK6ZC to submit your question prior to the web event.
Enhancing Your Practice: Lemon Law Bootcamp
Date: October 5, 2011 - 2:00pm - 3:15pm
How To Register
Visit the Member’s Only Section of the NACA Website.Click on the Event Registration link, located on the left portion of the page.
Registration fee - $50
This program has been pre-approved for 1 hour of CLE credit in California. NACA will assist members in securing CLE credit in states that accept web-based CLE programs, through providing the appropriate documentation.
Why You Should Attend
The goal of the National Association of Consumer Advocates’ Enhancing Your Practice series is to assist members in learning how to incorporate additional areas of consumer law into their practice. In this webinar you will learn how to incorporate Lemon Law into your practice. The addition of lemon law to your practice will generate revenue and will open the doors to other cases in abundance, such as Auto Fraud.
What You Will Learn
• How you can make money adding Lemon Law to your practice
• The foundations of Lemon Law practice
• The Presumptions of Lemon Law Cases
• The multiple methods for bringing Lemon Law cases
• The remedies of Lemon Law cases
In the Works
Enhancing Your Practice Series: Improving Law Firm Profitability Part I
Would you like to increase the profitability of your practice? Ever wonder whether you use the best business & practice model? Wonder which areas of consumer law provide the greatest opportunity for successful practice? If you answered yes to any of these questions this is a webinar you need to attend. Part I of this series will address these questions and will help you to establish the foundation for a strong, successful, profitable practice.
ATT to Consumers: Arbitration is Great When it Helps Us, Horrible When it Does Not
In the fight to protect consumers and restoring access to justice one is rarely surprised by the level of corporate hypocrisy. Yet, last week’s filing by AT&T managed to do just that.
This spring, in AT&T vs Concepcion, the Supreme Court dealt a devastating blow to consumers’ ability to access justice. In ruling that corporations can ban class actions where there is an arbitration clause in the contract, Post Concepcion, companies can potentially isolate themselves from court challenge with an arbitration clause in any contract.
Follow closely the highly illogical logic. To obtain this decision, AT&T, in Concepcion, argued that class actions in arbitrations shouldn’t be allowed because there was no meaningful judicial review of what arbitrators do; yet, they lauded individual arbitration as meaningful, efficient and economically beneficial to consumers. Since consumers now can’t bring class actions in court or in arbitration, the only recourse for a consumer fighting against corporate wrongdoing is to file in arbitration.
As it turns out though, AT&T only likes arbitration if only a few people actually use it. Last week, in response to the initiation of multiple arbitrations filed by many individuals, AT&T sought an injunction against any attempts to arbitrate such claims because, purportedly, the relief sought is akin to class-wide injunctive relief which is outside the scope of what the arbitration agreements permit. Translation: we only like arbitration if it works for us. Because too many people recently tried to bring individual arbitration filings AT&T is now bringing its customers to court.
Perhaps, consumer advocates were right all along. Pre-dispute mandatory arbitration clauses are exculpatory; they are not meant to accommodate anyone but the corporation who wrote the clause.
NACA staff continues to be in conversation with Senate Judiciary staff in hopes of a fall hearing on the Arbitration Fairness Act (AFA). Recognizing that the AFA may not move this Congress, NACA recently organized a brainstorming session of Arbitration experts and consumer advocates to discuss potential regulatory and state fixes to arbitration. The group identified several potential regulatory opportunities and will be working over the coming months to reach out to and be in conversation with regulatory agencies like the Equal Employment Opportunities Commission, National Labor Relations Board and others to explore whether these agencies have the specific jurisdiction such that rulemaking on forced arbitration is a possibility. Stay tuned to learn the outcome of these conversations!
In this post Concepcion environment, we are now keenly aware of the need to build a strong offense but also to play defense! In recent conversations with House Judiciary staff, we have learned of attempts to include provisions encouraging the use of forced arbitration in legislation being considered by the House. On September 14th, through the Fair Arbitration Now Coalition, NACA was alerted to and opposed H.R. 2847, a bill that would deprive agricultural guest workers of their access to legal remedies. Section 6 of this bill encourages employers to force agricultural workers into mandatory binding arbitration to settle disputes. Not only is this provision redundant - as forced arbitration clauses are already permitted in employment contracts – it virtually would ensure that workers could not seek redress in the legal system.
The Concepcion committees continue to build the foundations of a long term grassroots campaign to end the use of forced arbitration. Over the last month committees have designed a survey as a mechanism to locate good stories and are now beginning to reach out to NACA members but also to the membership of our allies - AAJ/Trial Lawyers, NCLC and NELA! With these contacts we hope to build the beginning of a story database and website to demonstrate the real-life impact of forced arbitration on consumers and bring wider attention to the problem of forced arbitration.
We were thrilled to see that one of the country’s leading consumer reporters – Bob Sullivan – recently reported on the damaging impact of the Concepcion decision to consumers. Thanks to Communications Committee member, David DiSabato, and NACA member Hal Rosner for their contributions to this story. If you’d like to join the effort and tell your clients’ story, contact a member of the Communications Committee at firstname.lastname@example.org.
During the week of September 19th, HR 2219, the DOD Appropriations bill, was considered and passed by the Senate with the Jamie Leigh Jones Amendment intact, despite recent negative press attention. As a reminder, the Jamie Leigh Jones Amendment prohibits any federal contractor from entering into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve any conflict through arbitration. The House passed this bill in July and the Senate Appropriations Committee reported it out early this month. We anticipate that debate on this bill will begin early the week of September 26th, 2011.
On October 20, 2011, NELA, the National Employment Lawyers Association, will be hosting its annual lobby day and will focus primarily on forced arbitration. The Concepcion Legislative and Political committee seeks NACA members to participate in this event. If you will be in the D.C. area and would like to participate in this lobby day, please contact Delicia at Delicia@naca.net.
NACA Military Justice Project
The Military Justice Project continues to work to build itself out as a fully functioning project of NACA. Under the leadership of its current co-chairs, Dwain Alexander and Mike Kinkley, the Military Justice Project has recently approved a new logo and mission statement which will soon be featured on the NACA website. Additionally, the project chairs have begun outreach to several military installations to make them aware of the NACA Military Justice Project. The project is finalizing the launch of its first initiative, a pilot on-base training program which will take place this fall in a few regions – Washington state, New Jersey and Virginia. If these trainings are successful, they will become the model for future wider trainings. Leading up to this training Military Justice Project members will facilitate some webinar to train NACA members on how to work within the military structure. If you have additional questions about this project or would like to join the project’s steering committee, please contact Delicia at Delicia@naca.net
The Federal Trade Commission has just announced that it will hold its next Roundtable of discussions on auto financing abuses and consumer protections in the industry in Washington, D.C. on November 17th, 2011. We anticipate that this next event will focus on leasing and rent-to-own auto deals. If you have expertise in this area and would like to participate in the upcoming roundtable, please contact Delicia at Delicia@naca.ne
What’s your story? Tell Congress the Consumer Finance Protection Bureau needs a director now!
As a consumer advocate, I am moved most, not by the data and research demonstrating the need for stronger consumer protection and financial reform, but by personal stories shared by consumers – both in their ability to help advance an important policy issue and reaffirm the human spirit. Moving from the technicality and policy relevancy of an issue, stories move us, stir our hearts and remind us of our connection to each other. Personal stories are not only records of change but also act as agents of change.
By being exposed to others’ stories and personal experiences, consumers gain valuable insight into the specific ways others have attempted to achieve social change; advocates gain the confidence necessary to help their clients make change; public officials and policy makers gain the courage to make laws that protect and preserve consumers rights. Stories also demystify and make accessible the public policymaking process.
Your story needs to be told! In 2010 Congress took a bold and courageous move and passed the Dodd-Frank Wall Street Reform and Consumer Protection Act which created a new consumer cop on the beat, in the Consumer Finance Protection Bureau! Over the last few months, Republican leaders in the Senate have pledged to refuse to implement this law passed in 2010 by refusing to consider Richard Cordray’s nomination to direct the CFPB, leaving the Bureau without the full authority it needs to do its job.
Call your senator let them know that this may work well for Wall Street banks, and financial industry special interests, but it doesn’t work for you!
Member of the Month: John Cole Gayle, Jr.
John Cole Gayle, Jr. founded his law firm, The Consumer Law Group, P.C. of Richmond, Virginia, in 2001. He is a nationally known expert on Consumer Law. He has concentrated his practice in consumer law for over twenty five years. His practice primarily involves the Lemon Law, fraudulent contracts, consumer credit problems and he has an active Fair Debt Collection Practices Act practice as well. He is author of the 1988, 1990, & 1998 legislative amendments of the Motor Vehicle Warranty Enforcement Act (Va.’s lemon law), he has written articles on Virginia's Lemon Law for various periodicals, testified before the Virginia General Assembly General Laws Subcommittee regarding the amendments to the Virginia Consumer Protection Act (VCPA)(Va.’s UDAP) and the Senate Courts Committee on amendments to the VCPA, he is a frequent teacher for continuing legal education programs on consumer law, lemon law, and litigation for the Virginia CLE , he has lectured on miscellaneous automobile issues at the 1998 & 1999, 2004, 2009, and 2011 Annual Consumer Rights Conference put on by the National Consumer Law Center and the National Association of Consumer Advocates (NACA), on Lemon Law, Auto Fraud, and How to Develop a Successful Consumer Practice. Mr. Gayle has appeared on local and national TV and radio programs on numerous occasions, and appeared on ABC World News Tonight with Peter Jennings in March, 2005 regarding the problems with arbitration agreements, in a news piece entitled, “The Fine Print”.
He is chair of the Virginia Trial Lawyers Association Legislative Subcommittee on Consumer Law, and is the State Coordinator of Virginia for the National Association Of Consumer Advocates. He received his B.A. from Hampden-Sydney College, cum laude, and his Juris Doctorate from the T. C. Williams School of Law at the University of Richmond in 1979, where he was on the National Moot Court team. He is past vestryman of St. Stephen’s Episcopal Church, where he facilitates adult Christian education classes and is on the Outreach and Adult Christian Education Committees. He is married to Lora Lenhart Gayle, has two children, Lia and Cole, dog – “Anna”, “Socks” the cat, and “Spike” - the Bearded Dragon lizard.
The urgency of our organizing to demand increased consumer protections and financial reforms could not be greater. According to the US Census Bureau’s 2010 poverty statistics, more Americans are now living in poverty than ever before in the Bureau’s half-century of record-keeping. Yet, all over the country, and particularly at the seat of its government, here in Washington, D.C., consumer rights are under attack. In this month’s Legislative Update, we feature a state UDAP fight that is currently ongoing in Ohio. Please read and get involved!
Proposed Deconstruction of Ohio’s UDAP Law - a National Trend?
On June 21, 2011 Ohio House Bill 275 was introduced to the Ohio General Assembly. If passed, the proposed changes would dismantle the nearly forty year old Ohio Consumer Sales Practices Act (CSPA or the Act) by inclusion of a “right to cure.” The bill’s proposals undermine the deterrent and remedial purpose of the Act, and if enacted would preclude access to justice for many consumers.
This bill is backed by the Auto Dealers’ Association, the Chamber of Commerce, and The Ohio Manufacturers’ Association, and endorsed by Ohio’s Attorney General.
There are thirteen other states and territories that have cure provisions built into their respective state UDAP laws. The proposals in HB 275 would take Ohio’s UDAP law from middle of the road, to among the very worst in the nation. If enacted, Ohio would have the only right to cure provision in the nation that is triggered only after a lawsuit is filed. Additionally, it would have the only cure provision that also places an arbitrary cap on the consumer’s ability to recover her reasonable attorney’s fees. If the right to cure takes hold in Ohio, it is likely only a matter of time before big business lobbies its agenda in other states.
The bill’s proponents contend that the right to cure will speed up the resolution of CSPA lawsuits. But in reality it will make it harder for consumers to fight unscrupulous companies. The bill’s proposal would allow a business to proffer a cure offer to the consumer, which is triggered within thirty days after service of the lawsuit. The “cure” offer includes the value of the consumer’s damages, and a maximum of $1,500.00 for attorney’s fees. This cure does not include remedies otherwise available under the CSPA, including equitable rights, such as rescission, declaratory and injunctive relief; non-economic damages; treble damages; or reasonable attorney’s fees.
HB 275 would allow the supplier to fashion its cure offer as the “Value of Supplier’s Remedy.” This flawed provision would permit, for example, the same supplier who ripped the consumer off and sold her a $10,000.00 rebuilt wreck vehicle, to cure that harm when it tenders coupons for services valued by the supplier to be $10,000.00. Thus, an aggrieved consumer would be forced to continue to deal with the unscrupulous supplier that ripped her off in the first place.
Under HB 275, if the consumer does not receive an award for actual damages that exceeds the value of the supplier’s cure offer, that consumer cannot recover treble damages, nor attorney’s fees and court costs arising after the date of the cure offer.
The bill’s supporters assert that the right to cure would prevent the CSPA from being used to force small businesses to pay exorbitant settlements on meritless consumer claims. This position lacks a clear understanding of the Act, which already includes mechanisms to avoid such abuse. The Act requires that treble damages only be awarded in instances of a violation so declared and published for public inspection by the Ohio Attorney General, or by court order.
Likewise, a checks and balance system is incorporated into the Act allowing recovery of attorney’s fees only as deemed reasonable by the court. And finally, there is also provision in the Act allowing the supplier to recover its attorneys’ fees if a consumer advances or maintains a groundless claim under the CSPA.
As Ohio’s suppliers and consumers already have the right to cure or settle their disputes, HB 275 shifts all of the risks upon the consumer. This bill will also hurt honest businesses, which will be placed at a competitive disadvantage.
In opposition to HB 275, Ohio consumer advocates have formed the Ohio Consumer Rights Coalition (OCRC). The OCRC seeks advocates and consumers who may contribute stories and/or testimony with respect to the impact of such legislation in their state. Ohio consumers need your assistance now. If you’re interested in making calls to Ohio state legislators, click here for a list of legislators and here for a set of talking points.
If you have any questions, please feel free to contact Amy Wells at (937) 435-4000 or at awells@OhioConsumerHelp.com.
Written by: Amy Wells, WELLS LAW OFFICE, INC., Dayton, Oh
Recently, many have speculated that the proposed settlement between large mortgage lenders and state attorneys general is "likely to fall apart." If this were to occur, homeowners could possibly lose their best opportunity for immediate relief from servicer misbehavior and improper foreclosures. As you know, Iowa Attorney General Tom Miller has been leading a 50-state working group on mortgage fraud since last October. Critics, who seem to have limited knowledge of the ongoing negotiations, have accused the AGs of going too easy on the big banks. This criticism, which seems to have had the unfortunate consequence of making a settlement less likely, also does a disservice to the AGs leading this effort (including AG Miller and Lisa Madigan of Illinois) who have a long and strong history of protecting consumers.
Further complicating the potential for a strong settlement for consumers, the Federal Housing Finance Agency, the regulator for Fannie Mae and Freddie Mac filed suit against more than a dozen major financial institutions over mortgage-backed securities they sold to investors. FHFA sued 17 major banks and a number of individuals for fraud in the issuance and sale of mortgage backed securities during the buildup of the housing bubble. The Banks, in response to this lawsuit (which likely will offer little benefit to homeowners), have used this as an excuse to temporarily abandon their negotiations with the AGs. What comes next - we just don't know.
On September 15th, NACA joined an AFR comment letter in response to a Request for Information notice put out by the Administration looking for ideas on how to handle the large and expanding REO inventory of Fannie, Freddie and FHA. The letter expressed our desire as consumer advocates that the most effective way to reduce the number of foreclosed properties is to execute an effective and meaningful program to prevent them in the first place. The agencies and FHA should use available tools like more aggressive modifications, principal reductions and low-cost refinancing to both reduce foreclosures and stabilize the housing market overall which will, in turn, help to create a stronger economy and more of a market for current REO inventories.
On September 22, NACA joined in an AFR comment letter to the Consumer Financial Protection Bureau on its interim final regulation implementing the Dodd-Frank amendments that rewrote the Alternative Mortgage Transactions Parity Act. AMTPA preempts state laws -- whether applied to banks or nonbank mortgage lenders -- that restrict "alternative" mortgages with features like negative amortization, balloon payments, and other terms of adjustable rate mortgages. The CFPB's Interim Final rule, issued the first day of the CFPB's existence, is intended to ensure the continued flow of mortgage credit. However, in their rush to write these regulations, they made several significant and unfortunate mistakes, which we urged that they correct quickly
NACA continues to be in dialogue with staff and officials from the new Consumer Finance Protection Bureau through the Americans for Financial Reform Coalition (AFR). On August 30th, 2011, NACA staff participated in a meeting with Raj Date the current acting head of the CFPB; and on September 9, 2011 NACA staff also met with members of the Consumer Finance Protection Bureau’s complaints team. Where prior meetings have focused on advocates communicating their priorities to the Bureau, at these recent meetings our aim was to listen and to hear from the agency representatives what are their concrete plans now that the agency is up and running. At the meeting with Raj Date, CFPB officials reiterated their goal to deliver demonstrable value, build a great institution and create a trusted relationship with consumers. At the meeting with the CFPB complaints unit, staff reaffirmed that the Bureau has launched its complaints system but is only working on resolving credit card complaints to date. Complaints are coming in at a manageable level though no data is available yet. It appears that the next area the Consumer Response unit will tackle will be mortgage servicing complaints.
Congress returned to Washington this month after its August recess and appears still to be intent on weakening the Consumer Finance Protection Bureau. On September 6, 2011, the first day back in session after the August recess, the Senate held a nomination hearing for former Ohio Attorney General Richard Cordray to be the head of the Consumer Finance Protection Bureau (CFPB). As expected, the Cordray nomination hearing was somewhat contentious with Senator Shelby reiterating the forty-four Senate Republicans’ commitment to block any nominee to head the CFPB unless Democrats agree to make changes to the agency's structure. NACA submitted a letter of support for the Cordray nomination to the Senate Banking Committee and conducted outreach to obtain consumer stories to demonstrate why the CFPB must have a Director. Thank you to all members who helped us to obtain consumer stories!
As a continuation of this effort to demonstrate the need for a director and a strong and independent CFPB, on September 14, 2011, NACA participated in a call organized by the White House. The goal of the call was to involve 'real people' - who will be helped by the having a director of the CFPB being confirmed - so that they could share their stories and hear directly from the White House. Deputy National Economic Council Director Brian Deese led the call. Although not everyone who participated could tell their story, it was important to demonstrate to the White House that there is a popular demand and support for the new agency. Many thanks to you and your clients who were able to participate in this call – 35 NACA members responded and participated in the call and we were able to generate client stories from 8 different states. If you are interested in participating in opportunities to push-out the stories of consumer victims to the press and public please email Delicia@naca.net.
In the meantime, here’s what you can do…
The new Consumer Financial Protection Bureau is just beginning its work. But, until a confirmed director is in place, the agency won’t be able to do its job nearly as effectively as is necessary to protect consumers and avert future financial catastrophes. The agency cannot exert its full authority until a director is in place.
We need you to support the agency’s organizing and to demonstrate support the need for a director to be put in place. Here’s how you can help:
• Call your Senator by calling 1-888-291-9824 to be connected to the Capitol switchboard.
• Ask to be connected with the office of one of your senators. Not sure who your senators are? Click here to find your senator.
• Tell your senator: “I’m calling to urge my senator to confirm Richard Cordray to lead the Consumer Financial Protection Bureau. I’m a constituent and I want a strong cop on the beat!