NEW LAWYER TRAINING MARCH 2016 CRIMINAL LAW. a. Speaker Katherine L. Wolfe, Esq. i. B.A. Criminology, 2007 Ohio State University

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1 1. INTRODUCTION NEW LAWYER TRAINING MARCH 2016 CRIMINAL LAW a. Speaker Katherine L. Wolfe, Esq. i. B.A. Criminology, 2007 Ohio State University ii. J.D., 2010 Capital University Law School iii. Luftman, Heck & Associates, LLP iv. Wolfe Law Group, LLC 2017 Present b. Topic Consumer Law i. Ohio Consumer Sales Practices Act 1. Unfair/Deceptive Practices & Unconscionable acts 2. Public Inspection File 3. Damages ii. Debt Collection 1. Defending and Resolving Debt Based Lawsuits 2. Fair Debt Collection Practices Act iii. Consumer Reports and the Fair Credit Reporting Act 1. Inaccurate Reporting a. Disputing Inaccurate Information b. Credit Reporting Agency and Furnisher Duties c. Damages (Miller v. Equifax) 2. Impermissible Access a. Permissible Purpose b. Damages

2 c. Resources i. Public Inspection File ii. National Consumer Law Center 2. Ohio Consumer Sales Practices Act a. Relevant Statute i. R.C b. Definitions i. Consumer Transaction ii. Person iii. Supplier iv. Consumer c. Unfair/Deceptive Practices & Unconscionable Acts i. Misrepresentations ii. Supplier Knowledge d. Public Inspection File i. e. Damages/Remedies i. Rescission ii. Declaratory Judgment and Injunctive Relief iii. Damages 1. Actual economic damages/statutory damages 2. Non-economic Damages a. $5,000 cap

3 3. Treble Damages (does not apply in class action) a. If deemed violation per the PIF 4. Attorney Fees iv. Supplier s Right to Cure 1. Supplier must deliver within 30 days of service via certified mail and file with court. 2. Consumer has 30 days to accept or reject and provide notice to court. 3. The Cure Offer a. Clearly explain resolution offered: i. Suppliers remedy that consists solely of monetary compensation ii. Reasonable attorney s fees not to exceed $2,500 iii. Court costs incurred by consumer iv. The notice language contained in statute 3. DEBT COLLECTION b. The Risk of Rejection a. Defending and Resolving Debt Based Lawsuits i. Responding to the Complaint 1. Response within 28 days of service 2. Civ. R. 10(D)(1) a. Account or Written Instrument i. When complaint or defense founded on account or other written instrument, a copy of the account or written instrument must be attached to the pleading.

4 ii. If not attached, must provide reason for omission in pleading b. Motion for More Definite Statement i. If account is not attached, file pursuant to Civ. R. 12(E). 1. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a definite statement before interposing his responsive pleading. ii. Capital One Bank v. Toney, 7th Dist. No. 06 JE 28, 2007-Ohio Settlement/Negotiation a. Lump Sum Settlement/Reduced Balance b. Monthly Payment Plans c. Agreed Judgments d. Dual Entries b. Fair Debt Collection Practices Act-15 U.S.C i. Identify the Creditor 1. Must be a third-party creditor a. Debt buyer b. Collection agency

5 c. Collection attorney i. Special counsel exempt 2. Some states have laws just supplement FDCPA, but not Ohio ii. Communication 1. Prohibited Communication with the Consumer a. at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8:00 a.m. and 9:00 p.m., local time at the consumer s location b. directly with consumer if debt collector knows consumer is represented by counsel. c. At consumer s place of employment if debt collector knows or has reason to know that consumer s employer prohibits consumer from receiving such communication. 2. Communication with Third Party i. Generally prohibited, with exception of spouse ii. May speak with third party to confirm that they are contacting correct location iii. May not disclose that consumer has debt

6 3. Ceasing Communication a. Consumer can request in writing that debt collector cease communication. b. Exception to request to cease communication i. To advise that further collection efforts will be terminated ii. To inform consumer that the collector may invoke specified remedy iii. Additional Violations 1. Harassment/Abuse a. Threat of violence or other criminal means to harm person, reputation or property b. Use of obscene or profane language c. Excessive calling d. Publication of debt 2. False/Misleading Representations a. Misrepresenting character, amount or legal status of debt b. Misrepresentation that collector is an attorney c. Representation that failure to pay will result in arrest or imprisonment, garnishment, attachment, sale of property or wages (unless action is lawful and collector intends to take such action)

7 d. Failure to disclose mini Miranda e. 3. Unfair Practices a. Collection of any amount outside what is authorized by agreement or by law b. Depositing or threatening to deposit postdated check prior to date on the check iv. Validation 1. Consumer may request in writing within 30 days of initial communication, and places debt collector on notice that debt is disputed. 2. Debt collector duties a. Cease collection until verification is mailed to consumer b. Debt collector may file lawsuit. v. Damages 1. Actual damages 2. Additional damages up to $1, Costs and attorney fees 4. CONSUMER REPORTS AND FAIR CREDIT REPORTING ACT (15 U.S.C. 1681) a. Inaccurate Reporting i. Disputing Inaccurate Information 1. Consumer Access a. Following Credit Check

8 b Dispute Process a. Online Dispute i. ii. iii. b. Written Dispute i. Send certified mail ii. Attached relevant part of report and highlight incorrect information 3. Cause of Action a. If disputed more than once and creditor verifies, private cause of action arises. ii. Credit Reporting Agency and Furnisher Duties 1. Credit Reporting Agency a. Must notify furnisher within 5 days of receiving notice of dispute. Process to be completes within 30 days b. If determined information is inaccurate or unverified, the consumer reporting agency must promptly delete or modify as appropriate. c. Consumer reporting agency has duty to ensure consumer s identifying information is correct. 2. Furnisher Responsibilities Upon Dispute

9 a. Must conduct reasonable investigation b. Review all relevant information provided by consumer c. Report results to the consumer reporting agency d. Correct any incorrect information. iii. Damages 1. Statutory Damages between $100 and $1, Actual Damages 3. Attorney Fees and Costs 4. Punitive Damages iv. Miller v. Equifax Information Services, LLC 1. Case No. 3:11-cv-01231, U.S. District Court for the District of Oregon 2. Judy Miller denied credit due to false derogatory collection accounts. Report had incorrect identifying information, include social security number and birthdate. 3. Equifax failed to provide requested report multiple times. 4. Miller disputed the information eight times, with Equifax failing to correct information each time. 5. Equifax found to be in violation of FCRA. 6. Judgment of $180,000 compensatory damages and $18.4 million awarded in punitive damages (largest ever in individual consumer s case). 7. Punitive damage award was later reduced to $1.62 million.

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