Consumer Bankruptcy Law and Practice: Amendment History
[78 Fed. Reg. 16,153 (Mar. 14, 2013)]
[78 Fed. Reg. 16,153 (Mar. 14, 2013)]
(a) An approved agency shall send a certificate only to the client who took and completed the counseling services, except that an approved agency shall instead send a certificate to the attorney of a client who took and completed counseling services if the client specifically directs the agency to do so.
If an agency offers or has offered debt repayment plans, an agency shall possess adequate financial resources to provide continuing support services for such plans over the life of any debt repayment plan, and provide for the safekeeping of client funds, which shall include:
(a) The following definitions apply to §§ 58.25 through and including 58.36 of this Part, as well as the applications and other materials providers submit in an effort to establish they meet the requirements necessary to become an approved provider of a personal financial management instructional course.
(b) These terms shall have these meanings:
This new appendix does not appear in the printed treatise.
Source
Integrated Mortgage Disclosures Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z)
Final Rule, Effective October 3, 2015
78 Fed. Reg. 79,730 (Dec. 31, 2013)
The “FDCPA Case Connector” provides access to over 15,000 Fair Debt Collection Practices Act case summaries, including summaries of decisions from the U.S. Supreme Court, the federal circuit courts of appeal and their bankruptcy appellate panels, federal district courts, federal bankruptcy courts, and state appellate courts. The digital version of Appendix E includes the case summaries organized by FDCPA topic. The “FDCPA Case Connector,” linked from the top of this treatise’s left pane “Contents,” provides more options to search for exactly the citation you need.
A highlight of this treatise is that the digital version contains a large number of practice tools, pleadings, and primary sources. The pleadings include sample complaints, discovery, jury instructions, and other pleadings ready to adapt for litigation. In addition, there are a number of hard-to-find primary source materials available, including FDCPA legislative history, Regulation F regulatory history, and agency interpretations of the FDCPA. All material is searchable, downloadable, and printable. The text also links to the full text of many recent federal appellate decisions.
Practice tools include two interview forms, a telephone log form to help clients develop the facts of their debt collection claims, two sample retainer letters, litigation tips, privilege logs, discovery plans, a violations checklist, and sample letters regarding taxability of forgiven debt. These can be downloaded and easily adapted for use by a particular law office or client.
This treatise’s digital version includes over one hundred sample pleadings related to debt collection cases. All of them can be downloaded and adapted for a particular case and jurisdiction. Some pleadings must also be adapted for current procedural requirements. For example, some complaints were drafted prior to relevant Supreme Court decisions.
Sample pleadings include:
The “Primary Sources” collection includes extensive FDCPA legislative history, including the text of the 1977 public law, earlier versions of the law, committee hearings and reports, and transcripts of Senate and House debates on the original FDCPA.
This appendix reprints the federal Racketeer Influenced and Corrupt Organizations (RICO) statute at Appendix E.1, infra.
This treatise is a practical guide for plaintiffs’ attorneys who litigate consumer class actions. It provides step-by-step advice on every major aspect of handling a consumer class case, including pre-filing evaluation, the distribution of class benefits, and case management. In addition, the digital version of this treatise contains scores of class action litigation documents: co-counseling agreements; complaints; a client retainer form; discovery; class briefs; class notices; stipulations of proposed settlement; and objections to class settlements.
Chapters cover the selection of a case for class treatment, obtaining the client’s authorization to sue, selecting legal claims and the proper forum, choosing the class definition, drafting the complaint, conducting discovery on class issues, preparing the named plaintiff for deposition, countering a defendant’s delaying tactics, and preventing the defendant from destroying class files or tampering with class members.
Before filing any lawsuit, a plaintiff’s attorney must carefully estimate the potential for success by evaluating the facts, the viability of the legal claims, likely defenses, and other issues. A class action requires the same or greater care and consideration of a number of specialized issues. The following sections provide a guide for initial evaluation of class action claims. None of the issues identified below is necessarily a complete barrier to proceeding as a class action, but they certainly increase the difficulty and complexity of the case.
The term “Stafford Loans” may refer to a (1) subsidized or unsubsidized Federal Stafford Loan that was previously made through the Federal Family Education Loan (FFEL) Program (FFEL Stafford Loan) and to a (2) Direct Subsidized Loan or Direct Unsubsidized Loan, which are the Direct Loan Program equivalents that continue to be issued today.
In recent years, many states have passed laws to strengthen the rights of student borrowers.279 As result of these laws, a number of states across the country have a designated student loan ombudsmen or advocates. These state officials are a dedicated resource committed to providing information that is critical to many student loan borrowers.
Student Loan Law is available in both a print and digital version. Print revisions are released every few years and the digital version is updated more frequently, with all changes integrated into the text. The digital version also contains additional pleadings, practice tools, and primary source material, as described at § 1.2.4, infra.
Prior to July 1, 2006, married borrowers could choose to consolidate loans from both spouses or jointly consolidate the loans of either spouse. Both borrowers had to agree to be jointly and severally liable for repayment. In addition, the borrowers had to agree to repay the joint loan regardless of any change in marital status. Perhaps because of the dubious advantages of this program, Congress eliminated it as of July 1, 2006.107
Banks and other financial institutions make private student loans without any direct financial backing from the federal government. Banks may issue private loans to fund a student’s education or to refinance a borrower’s existing federal student loans into a new private loan. Private loan issues are discussed in detail in Chapter 16, infra.
The Department of Education’s website is extensive and contains a great deal of useful information. The Federal Student Aid (FSA) website is the main source of information and resources for student loan borrowers. It can be found at https://studentaid.gov. Borrowers may access information about default and collection relief at https://myeddebt.ed.gov.280 Borrowers can also call the FSA Information Center at 1-800-4-FED-AID (1-800-433-3243) or 1-800-730-8913 (TDD).
Grants do not usually have to be repaid unless there is an overpayment. A school must cancel or reduce as appropriate the amount of a Pell Grant award if the borrower is approaching their lifetime eligibility limit.151 The school is liable for an overpayment if it occurred because the school failed to follow proper procedures.152 If the school is not liable, they must notify students of the overpayment and request repayment.
The Perkins Loan Program (formerly called National Direct Student Loans and, before that, National Defense Student Loans) provided low-interest loans (Perkins Loans) to both undergraduate and graduate students with exceptional financial need.122 Perkins Loans were originated and are serviced by participating schools and repaid to the school. The government did not insure these loans but instead provided initial contributions to eligible institutions to partially capitalize a loan fund.
The most efficient way to find out about a client’s federal student loans is by accessing the borrower’s information through the National Student Loan Data System (NSLDS). The NSLDS is the Department of Education’s central database for federal student aid. It receives data from schools, agencies that guarantee loans, the Direct Loan Program, the Pell Grant Program, and other Department programs.
Today, PLUS loans are only available through the Direct Loan Program.71 Prior to July 1, 2010, PLUS Loans could also be issued as FFEL Program loans. There are PLUS loans for both parents (parent PLUS loans) and graduate/professional students (graduate/professional PLUS loans). A graduate or professional student’s maximum annual Direct Unsubsidized Loan eligibility must be determined before the student applies for a PLUS loan.72
In 2007, NCLC established a Student Loan Borrower Assistance Project (SLBA). SLBA is focused on providing public information about student loan rights and responsibilities for borrowers and advocates. SLBA also seeks to increase public understanding of student lending issues and to identify policy solutions to promote access to education, lessen student debt burdens, and make loan repayment more manageable.