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On April 30, North Dakota enacted HB 1136, which compels the Secretary of State to provide an electronic means for filing any record required to be filed under the state Uniform Commercial Code. The bill also, among other things, directs the Secretary to establish an electronic system and requires electronic filing to obtain or amend certain liens, including repairman’s liens and other non-mortgage liens. The changes become effective August 1, 2015. If the Secretary makes a report to the legislative management and to the information technology committee certifying that the electronic filing system is ready for implementation, these changes will become effective ninety days following the completion of the certificate requirement.
California Federal Court Holds Online Purchase Transactions for Shipped Merchandise Not Covered by Song-Beverly Credit Card Act
On April 30, the U.S. District Court for the Central District of California held that Section 1747.08 of the Song-Beverly Credit Card Act, which prohibits retailers from requiring personal information as a condition to completing credit card transactions, does not apply to online purchase transactions in which the merchandise is shipped or delivered to the customer. Ambers v. Buy.com, No. 13-196, slip op. (C.D. Cal. Apr. 30, 2013). The ruling extends a recent holding by the California Supreme Court in Apple Inc. v. Sup. Ct. Los Angeles, which held that the Song-Beverly provisions do not apply when the item purchased is downloaded via the Internet. In this case, the customer claimed on behalf of a putative class whose claims could total $500 million that Apple created a standard that applies the Song-Beverly protections whenever the retailer has “some mechanism” to verify the customer’s identity. The plaintiff argued that the retailer’s request as part of the purchase transaction for a phone number in addition to the shipping address violated the statutory privacy protection. The court reasoned that as explained in Apple, the state legislature intended to allow retailers to verify that a person making a card purchase is authorized to do so, and stated that the shipping address alone would not work as an anti-fraud mechanism because a person who buys merchandise online may direct shipments to addresses not related to the credit card billing address. As such, the court held that Song-Beverly privacy protection does not apply to online purchases where the merchandise is being shipped or delivered, and granted the retailer’s motion to dismiss.
On May 1, the FTC and the CFPB announced a roundtable to “examine the flow of consumer data throughout the debt collection process” and discuss (i) the amount of documentation and other information currently available to different types of collectors and at different points in the debt collection process, (ii) the information needed to verify and substantiate debts, (iii) the costs and benefits of providing consumers with additional disclosures about their debts and debt-related rights, and (iv) information issues relating to pleading and judgment in debt collection litigation. The event will be held on June 6, 2013 in Washington, DC and is open to the public.
On May 1, the CFPB announced its next Consumer Advisory Board Meeting, scheduled for May 15, 2013 in Los Angeles, CA. The meeting agenda includes a public session that will feature remarks from CFPB Director Cordray and comments from consumer groups, community and industry representatives, and members of the public.
On April 29, the U.S. Attorney for the Southern District of New York dropped its reverse false claims count in a pending False Claims Act case against a mortgage lender. U.S. v. Wells Fargo Bank, N.A., No. 12-7527. Although the government’s letter does not provide the reasoning behind its decision, during the recent oral argument on the lender’s motion to dismiss, the judge questioned the claim, noting that the obligation to pay at issue is conditional because it depends on an exercise of discretion by the government. The lender’s motion to dismiss remains pending.
On April 30, the CFPB published policy recommendations for advancing K-12 financial education. The paper, “Transforming the Financial Lives of a Generation of Young Americans,” identifies perceived problems for young people in the financial marketplace and reviews current approaches to financial education for the target age groups. The CFPB recommends that state policymakers and educators (i) introduce key financial education concepts early and make a stand-alone financial education course a graduation requirement for high school students, (ii) include personal financial management questions in standardized tests, (iii) provide opportunities throughout the K-12 years to practice money management through innovative, hands-on learning opportunities, (iv) create consistent opportunities and incentives for teachers to take financial education training for use in teaching financial management to their students, and (v) encourage parents and guardians to discuss money management topics at home and provide them with the tools necessary to have conversations about money with their children.
On April 26, the CFPB issued a final rule that (i) establishes the governance structure of the Civil Penalty Fund, including the position of Civil Penalty Fund Administrator, (ii) identifies categories of victims who may receive funds and the amounts they may receive, (iii) establishes procedures for allocating funds for payments to victims and for consumer education and financial literacy programs, and for distributing allocated funds to individual victims, (iv) describes the circumstances in which payments to certain victims or classes of victims will be deemed impracticable, and (v) requires the Administrator to issue regular reports. While the CFPB issued the rule without a notice and comment period because the rule is exempt from the Administrative Procedures Act and other rulemaking requirements, it also issued a related proposal in which the CFPB seeks comment on, among other things, (i) whether it should make payments to victims of any type of “activities” for which it has imposed civil penalties, even if no enforcement action imposed a civil penalty for the particular “activities” that harmed the victim, (ii) whether it should limit payments to a share of the civil penalties collected for the particular violations that harmed a consumer, as opposed to using general Civil Penalty Fund dollars, and (iii) alternatives to the allocation procedures to be used when sufficient funds are not available to compensate fully the uncompensated harm of all victims to whom it is practicable to make payments. Comments on the proposal are due within 60 days of its publication in the Federal Register.
On April 30, the National Institute of Standards and Technology (NIST) published a substantially revised version of its Special Publication 800-53, “Security and Privacy Controls for Federal Information Systems and Organizations,” the government’s core computer security guide. Although developed for use by federal agencies, the NIST Special Publication is widely used in the private sector. The revisions are the most extensive since the document first was published in 2005 and is meant to address evolving and emerging cyber security threats. For example, the new guide incorporates issues specific to (i) mobile and cloud computing, (ii) insider threats, (iii) applications security, (iv) supply chain risks, (v) advanced persistent threats, and (vi) trustworthiness, assurance, and resilience of information systems. It is sector-specific to allow organizations greater flexibility in building information security systems, and also provides for the first time a privacy controls catalog.
On April 26, Indiana enacted SB 238, which increases the maximum credit service charge for a consumer credit sale other than one involving a revolving charge account and the maximum finance charge for a supervised loan. Effective July 1, 2013, the bill increases the applicable amounts financed, which are subject to the graduated service charge or loan finance charge percentage, and increases the service charge or loan finance charge percentage that applies if the graduated percentages do not apply. For consumer loans other than supervised loans, the bill increases the permitted loan finance charge from 21% to 25%, provides that the lender may contract for and receive a loan origination fee of not more than 2% of the loan amount (or line of credit, for a revolving loan) in the case of a loan secured by an interest in land, or $50 in the case of a loan not secured by an interest in land. For supervised loans, the bill provides that the lender may contract for and receive a loan origination fee of not more than $50. For both supervised loans and consumer loans other than supervised loans, (i) the permitted minimum loan finance charge may be imposed only if the lender does not assess a loan origination fee, and (ii) in the case of a loan not secured by an interest in land, if a lender retains any part of a loan origination fee charged on a loan that is paid in full by a new loan from the same lender, certain other restrictions apply.
Recently, the U.S. Court of Appeals for the Tenth Circuit affirmed in part and reversed in part a district court’s award of summary judgment to a mortgage servicer who provided a negative credit report after the borrower refinanced his home without notifying the closing agent that his servicing rights had been transferred. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173 (10th Cir. 2013). The district court granted summary judgment to the servicer and its foreclosure law firm after concluding that the borrower had failed to provide sufficient evidence of actual economic or emotional damages, or willfulness to support his FCRA claim. The Tenth Circuit affirmed the district court’s determination that the borrower had not provided evidence of economic damages or willfulness, but concluded that the evidence presented was sufficient to create a genuine issue of material fact about whether the borrower suffered emotional damages and reversed and remanded for further proceedings on that claim. In so doing, the court explained that borrowers can rely solely on their own testimony to establish emotional harm if they explain their injury in reasonable detail and do not rely on conclusory statements. The appellate court also affirmed the district court’s award of summary judgment in favor of the servicer on the borrower’s FDCPA claim, concluding that the servicer acquired the debt before it was in default, and thus did not qualify as a “debt collector” under the statute.