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Fair Credit Reporting: 15.4.5 Waiver of Consumer Rights

Employers, insurers, or others requesting investigative reports may attempt to avoid the FCRA notice requirements by seeking a waiver from the consumer. For example, an employer might require all job applicants to sign a form that contains an express waiver of their right to request disclosure of the nature and scope of any investigative report. The employer might even seek a broader waiver of all disclosure rights the consumer might have concerning any consumer report.

Fair Credit Reporting: 15.5.2 Keeping Inaccurate Information Out of the Investigative Report

To ensure that the information in an investigative report is accurate, the consumer should first respond to the notice that an investigatory report may be requested by asking the user for additional information about the requested investigation. The consumer should seek this information promptly, because the Act requires the user to provide additional information only if the consumer requests it within a reasonable period after receiving the first notice of the user’s request for an investigatory report.

Fair Credit Reporting: 15.6.2.1 Information from Personal Interviews

To guard against the inclusion of unsubstantiated information in investigative consumer reports, a CRA that interviews a consumer’s neighbor, friend, or other associate must follow “reasonable procedures” to confirm any interview information that is adverse to the consumer with an additional source having independent and direct knowledge of the information.211 The CRA may escape this confirmation requirement, however, if the person interviewed is the “best possible source of the information.”212

Fair Credit Reporting: 15.6.2.3 Verification of Information for Re-use in Subsequent Investigative Report

If a CRA prepares an investigative consumer report that contains adverse information, the CRA may not include that information in a subsequent consumer report unless the information “has been verified in the process of making such subsequent consumer report.”217 The required verification does not refer to the initial process to obtain the information, but to a verification made at the time of a subsequent report of the same information.

Fair Credit Reporting: 10.7.1.3 When Is State Law Inconsistent with the FCRA?

The FCRA does preempt state law “to the extent that those laws are inconsistent with any provision of this title, and then only to the extent of the inconsistency.”264 State law is inconsistent, for preemption purposes, only where the actor would violate the FCRA by complying with the state statute.265 For example, a state fair credit reporting act that provided attorney fees to a prevailing CRA was held not to be preempted by the FCRA because a consumer could avoid the risk of becoming responsi

Home Foreclosures: 15.3.3.3.1 Overview

When Congress enacted the statute authorizing HUD to insure reverse mortgages, it required that such FHA-insured loans include provisions protecting the homeowner and the spouse from displacement. However, until 2014-2017, this spousal protection was not included in HUD’s regulations, policies, or model loan documents. As a result, many spouses who were not included as borrowers on the reverse mortgage faced foreclosure and displacement from their homes upon the death of the borrower spouse.

Truth in Lending: 9.3.2.2 Coverage

Coverage under the CFPB’s rule is the same as under the prior FRB rule. All loan originators, as defined in the rule, whether an in-house loan officer or a mortgage broker are covered.53 Closed-end credit secured by a dwelling is covered, including closed-end reverse mortgages, but excepting timeshares.

Consumer Class Actions: 6.3.1 Importance of Preserving Documents

The reasons for taking care to preserve documents are straightforward. A class member’s claim frequently depends upon the existence of records in the defendant’s possession. Missing records can extinguish a class member’s rights or at least make a proof of claim much more difficult, if not impossible. Destruction of records also may prove damaging to the class as a whole. For example, missing records may make it impossible for the plaintiff to prove numerosity or the extent and illegal nature of the defendant’s conduct.

Consumer Class Actions: 9.5.4 Other Types of Objections

Other objections that may be appropriate in a client’s deposition are objections to the form of the question—for example, if it is vague or compound. These objections are appropriate if the questions are confusing or call for varying responses. Questions that assume the answer may be objectionable because they lack foundation or presume facts not in evidence. When the plaintiff is being asked the same question multiple times, objecting that the question has been asked and answered is appropriate.

Federal Deception Law: 3.1.1 The Consumer Financial Protection Bureau

Effective July 21, 2011,1 the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)2 Title X created the Consumer Financial Protection Bureau (CFPB), with authority—among other powers—to issue regulations and bring enforcement actions against financial service providers that engage in unfair, deceptive, or abusive acts or practices (UDAAP).

Consumer Class Actions: 12.3.1 Overview

This section focuses on the standards used by the circuits in deciding whether to grant appellate review under Rule 23(f), but also provides numerous examples of decisions upholding or reversing class certification rulings.

Collection Actions: 15.2.4 Relation Between Federal and State Wage Garnishment Protections

The federal Consumer Credit Protection Act (CCPA) explicitly provides that its garnishment restrictions do not limit the operation of state laws that exempt a larger share of a debtor’s wages from garnishment.208 Nor does the CCPA limit the operation of any state laws that prohibit employee discharge in cases in which the CCPA does not prohibit discharge.209 Congress enacted the CCPA to create a minimum level of debtor protections, only preempting state law that is less protective of debtors

Collection Actions: 15.2.1.5.1 Calculation rules

The CCPA garnishment provisions set a ceiling on the amount of a debtor’s disposable earnings that may be garnished. This subsection discusses these rules. State restrictions on garnishment, discussed in § 15.2.3, infra, should be also checked in every case, as many provide greater protection for the debtor.73

Collection Actions: 15.2.2.2 Garnishment of Federal Employees’ Wages; Salary Offset

Sovereign immunity protected federal government employees from garnishment145 until 1994, when Congress authorized garnishment of the paychecks of civilian and military federal employees.146 That law provides that the CCPA protections, and any more protective state exemptions, are available to federal employees.147 This statute does not, however, authorize the garnishment of federal pension benefits.148

Collection Actions: 15.2.1.4.1 Wages, vacation pay, sick pay

The CCPA garnishment provisions protect consumers from garnishment of “earnings,” defined as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.”36 The key question under this and similar state laws is whether payments are compensation “for personal services.”37 For example, accounts receivable may be protected under the CCPA and similar state st

Collection Actions: 15.2.1.6.2 Criminal and administrative enforcement

The CCPA provides criminal sanctions for wrongful discharge of an employee.107 The CCPA also provides that its garnishment restrictions are to be enforced by the Secretary of Labor acting through the Wage and Hour Division of the Department of Labor.108 The Secretary of Labor has the authority to seek injunctive and declaratory relief109 and the reinstatement of a wrongfully discharged employee.110