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Fair Debt Collection: 1.3.5.2.3 Compensation for collection agencies and individual collectors

The Consumer Financial Protection Bureau’s survey of large credit card issuers found that contingency fees that allow third-party collection agencies to retain a percentage of what they recover were the most common payment structure.279 The average contingency fee was 15.7% in 2020, with a range of 9.5 to 23% with higher fees awarded for accounts that are believed to be more difficult to collect.280 Most issuers also reported paying performance-based incentives.

Bankruptcy Basics: Chapters, Appendices, Practice Tools, and Pleadings

As a step-by-step guide, attorneys should familiarize themselves with all of the Chapters, in the order they are presented. Chapters are designed to be succinct, instructive, and easy-to-read, focusing on the basics necessary to successfully represent a debtor through the various stages of a bankruptcy case.

Consumer Bankruptcy Law and Practice: C.5.1 Introduction

Section 603(a) of the 2005 bankruptcy amendments, Pub. L. No. 109-8, 119 Stat. 118 (2005), required the United States Department of Justice to establish procedures to audit petitions, schedules, and other information in consumer bankruptcy cases filed on or after October 20, 2006. Pursuant to 28 U.S.C. § 586(f), the Executive Office of the United States Trustees (EOUST) contracted with private accounting firms to audit cases selected by the EOUST.

Consumer Bankruptcy Law and Practice: C.5.3 Information on Debtor Audits

Pursuant to section 603 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, individuals who file for relief under chapter 7 or chapter 13 of the Bankruptcy Code are subject to audit. At least one out of every 1,000 individual chapter 7 and chapter 13 cases will be randomly selected for audit. In addition, a case may be selected for an exception audit (audit of a case with income or expenditures above a statistical norm).

Consumer Banking and Payments Law: 1.5.10.2a Breach of Contract

Claims that banks breached their contracts with depositors by, for example, failing to abide by a clause promising to notify depositors in advance of any fee changes or by charging overdraft fees when the account was not overdrawn are not preempted.211 The savings clause of OCC’s preemption regulation explicitly preserves state contract law.212

Consumer Banking and Payments Law: 1.5.10.2.2 Affirmative misrepresentations

There is broad agreement that federal law does not preempt claims that banks made affirmative misrepresentations about the operation of their overdraft programs.202 As the Ninth Circuit has stated, “[s]tate laws of general application, which merely require all businesses (including national banks) to refrain from fraudulent, unfair, or illegal behavior, do not necessarily impair a bank’s ability to exercise its . . . powers.”203

Consumer Banking and Payments Law: 1.5.10.2.3 Duty of good faith and unconscionability

A number of courts have held that federal law does not preempt a claim that a bank violated the duty of good faith and fair dealing by measures such as manipulation of posting order.204 Since the duty of good faith and fair dealing is uniformly imposed on all parties as an element of contract law, courts have recognized that compliance with that duty has no more than an incidental effect on a bank’s exercise of its deposit-taking powers, so it falls within the savings clause of the preemption regulation.2

Mortgage Servicing and Loan Modifications: Introduction to Sample Pleadings

The digital version of this treatise includes under “Pleadings and Discovery” over 200 sample pleadings relating to injunction against sale, federally financed housing, RESPA, HOEPA, HAMP loan modifications, MERS, fraud and UDAP claims, land installment sales contracts, TILA rescission, servicing abuses, foreclosure rescue scams, bankruptcy, and other subjects. The pleadings include complaints, discovery requests, motions, briefs, proposed orders, and more.

Consumer Bankruptcy Law and Practice: A.2 Selected Provisions of Title 28 of the United States Code

Listing of Provisions

TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE

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CHAPTER 6—BANKRUPTCY JUDGES

28 U.S.C. § 151. Designation of bankruptcy courts

28 U.S.C. § 152. Appointment of bankruptcy judges

28 U.S.C. § 153. Salaries; character of service

28 U.S.C. § 154. Division of business; chief judge

28 U.S.C. § 155. Temporary transfer of bankruptcy judges

28 U.S.C. § 156. Staff; expenses

28 U.S.C. § 157. Procedures

28 U.S.C. § 158. Appeals

Consumer Bankruptcy Law and Practice: A.3 Selected Provisions of Other Titles of the United States Code

Listing of Provisions

TITLE 18—CRIMES AND CRIMINAL PROCEDURE

* * *

CHAPTER 9—BANKRUPTCY

18 U.S.C. § 151. Definition

18 U.S.C. § 152. Concealment of assets; false oaths and claims; bribery

18 U.S.C. § 153. Embezzlement against estate

18 U.S.C. § 154. Adverse interest and conduct of officers

18 U.S.C. § 155. Fee agreements in cases under title 11 and receiverships

18 U.S.C. § 156. Knowing disregard of bankruptcy law or rule

18 U.S.C. § 157. Bankruptcy fraud

Consumer Banking and Payments Law: Introduction and Listing of Provisions

The Check Clearing for the 21st Century Act (Check 21 Act)—12 U.S.C. §§ 5001–5018—is reprinted below. The public law section number from the original enactment of the Act, Pub. L. No. 108–100, 117 Stat. 1177 (2003), is found in brackets at the end of the title of each codified section.

Title 12—Banks and Banking

Chapter 50—Check Truncation

Sec.

5001. Findings; purposes [§ 2]

5002. Definitions [§ 3]

5003. General provisions governing substitute checks [§ 4]

Consumer Banking and Payments Law: 12 U.S.C. § 5001. Findings; purposes

(a) Findings

The Congress finds as follows:

(1) In the Expedited Funds Availability Act, enacted on August 10, 1987, the Congress directed the Board of Governors of the Federal Reserve System to consider establishing regulations requiring Federal reserve banks and depository institutions to provide for check truncation, in order to improve the check processing system.

(2) In that same Act, the Congress—

Consumer Banking and Payments Law: 12 U.S.C. § 5002. Definitions

For purposes of this Act, the following definitions shall apply:

(1) Account

The term “account” means a deposit account at a bank.

(2) Bank

The term “bank” means any person that is located in a State and engaged in the business of banking and includes—

(A) any depository institution (as defined in section 461 (b)(1)(A) of this title);

Consumer Banking and Payments Law: 12 U.S.C. § 5004. Substitute check warranties

A bank that transfers, presents, or returns a substitute check and receives consideration for the check warrants, as a matter of law, to the transferee, any subsequent collecting or returning bank, the depositary bank, the drawee, the drawer, the payee, the depositor, and any endorser (regardless of whether the warrantee receives the substitute check or another paper or electronic form of the substitute check or original check) that—

Consumer Banking and Payments Law: 12 U.S.C. § 5008. Delays in an emergency

A delay by a bank beyond the time limits prescribed or permitted by this chapter shall be excused if the delay is caused by interruption of communication or computer facilities, suspension of payments by another bank, war, emergency conditions, failure of equipment, or other circumstances beyond the control of a bank and if the bank uses such diligence as the circumstances require.

[Pub. L. No. 108-100, § 9, 117 Stat. 1188 (Oct. 28, 2003)]

Consumer Banking and Payments Law: 12 U.S.C. § 5009. Measure of damages

(a) Liability

(1) In general

Except as provided in section 5005 of this title, any person who, in connection with a substitute check, breaches any warranty under this chapter or fails to comply with any requirement imposed by, or regulation prescribed pursuant to, this chapter with respect to any other person shall be liable to such person in an amount equal to the sum of—

(A) the lesser of—

Consumer Banking and Payments Law: 12 U.S.C. § 5011. Consumer awareness

(a) In general

Each bank shall provide, in accordance with subsection (b), a brief notice about substitute checks that describes—

(1) how a substitute check is the legal equivalent of an original check for all purposes, including any provision of any Federal or State law, and for all persons, if the substitute check—