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ADA Protects Lawyers With Disabilities, But We Must Do More

Posted By Administration, Thursday, August 13, 2020

NCBA's Diversity & Inclusion Committee shares this article with you as part of its initiatives to educate NCBA's members on discrimination in the legal profession, including against people with disabilities.

By Danielle Liebl

Reed Smith LLP

It is a common knowledge for many employers, including law firms, that people with disabilities cannot be discriminated against in the workplace and may be entitled to accommodations.

Last month, we celebrated the 30th anniversary of the Americans with Disabilities Act, the civil rights law that gives people with disabilities these protections along with many more. While the ADA should be celebrated for the impact it has made, we also cannot forget that more needs to be done. Law firms need to create more tools in their toolbox to accommodate people with disabilities.

As a young attorney with cerebral palsy, a physical and developmental disability, the ADA has not only provided me with protections against discrimination because of my disability, it has also provided me with the confidence that I can become a successful and productive attorney. My cerebral palsy does not limit me much, but there are certain things that are more difficult.

For instance, because my muscles fatigue easily, I am unable to write more than a paragraph or two at a time, or stand for long periods. These challenges can make a productive workday more demanding. The good news is that because of the ADA, it is easier to navigate these challenges and find solutions that enable me to be productive. Specifically, the ADA has ensured that my disability is not a hindrance to my employment and guaranteed that I am entitled to reasonable accommodations.

The Strides We Have Made Today

One of the many protections the ADA provides is the assurance that an employer cannot reject a job applicant solely because they have a disability. Additionally, the ADA also states that an individual is not required to disclose their disability to their employer.

Some may not understand why a person would not disclose their disability to their employer, especially when they may need accommodations to perform their job. Many people with disabilities, including lawyers, fear the stigma that they may face if their disability is disclosed. In the legal profession, where intelligence and aptitude are key, the last thing a lawyer wants is to be classified as lacking in intelligence or weak because they have a disability. 

The ADA also provides that employers must make reasonable accommodations for employees with disabilities. One thing to understand about accommodations is that they are not costly arrangements that are burdensome to the employer and they do not give people with disabilities an unfair advantage. In reality, many accommodations are at little to no cost, may be a one-time occurrence, and allow those with disabilities to be on the same playing field as their peers.

Accommodations are, and should be, determined based on the individual and their needs. To illustrate how accommodations can help a lawyer with a disability be more successful, I would like to share how my accommodations help me to be more productive.

Office Setup

My cerebral palsy causes muscle spasms, which can be triggered when my arms are extended outwards. Little things, like having a keyboard tray, are helpful so I can better position my arms to be closer to my body, thus avoiding the painful and annoying muscle spasm.

When my law firm renovated its office space, the first thing I noticed was that there was no keyboard trays underneath the desk in my new office. When I thought about working without a keyboard tray, I cringed at the thought of a muscle spasm.

I emailed human resources, asking what my options were, and within minutes they told me a keyboard tray would be installed in my new office. A keyboard tray seems like a small thing to most, but for me, it can make or break a productive and pain-free workday.

Note Taking

Handwriting and note taking is a normal and everyday task for most lawyers, especially junior lawyers. However, handwriting requires fine motor skills and semifast muscle movements — two things that are not easy for someone with cerebral palsy. If you couple this with the task of listening to someone speak simultaneously, you can be sure that I am not absorbing what the speaker is saying because my mind is too focused on controlling my muscles.

Somewhere in the middle of my first year of practicing, I noticed that some of the mistakes I was making in my work were due to me not absorbing the instructions given while I was taking notes. When I brought this issue up with HR, they were able to provide me with creative solutions, such as sending me to a class to teach me the art of shorthand note taking. Ultimately, we decided together that it would make the most sense for me to ask the assigning attorney to clarify the instructions through email so there are no discrepancies.

Working From Home

There is the occasional day when my muscles decide that they want to, literally, be a pain and fatigue easy. While I could power through it and go to the office as I normally would, it would not lead to a productive day as my body would be fatigued by the time I get to the office. A helpful solution on those days is for me to work from home. This allows my body to be comfortable, while still having energy to do my work.

Typically, working from home has its challenges because it doesn't allow for face time with other attorneys, something that is important, especially for a new or junior attorney. As a result of the current pandemic, many people are being forced to work from home and law firms are finding new ways to keep their attorneys connected with one another. While the option to work from home occasionally has always been an accommodation for me, it may become a more useful accommodation if law firms continue their current practices of engaging attorneys remotely.

The Future We Need to Strive For

Undoubtedly, we have made great progress within the last 30 years because of the ADA. However, there is a lot of progress that still needs to be made.

Lawyers with disabilities still face challenges in the profession because of the attitudes and perceptions around disabilities and the barriers the legal profession places on applicants who want to enter the profession. Additionally, the legal profession as a whole needs to be more aware of the role it plays in contributing to some disabilities.

Understanding Disability and Changing Perceptions

The legal profession cannot change if it first doesn't understand what a disability is and is not. During my young life, I have encountered various assumptions about me ranging from "you don't look like you have a disability" to "you can't do other things, so I assume you can't do this." I can tell you that these are both wrong.

First, the term "disability" is broad and includes a wide range of diagnoses, including but not limited to, cerebral palsy, depression, autism and diabetes. Some, like cerebral palsy, are more visible and others, like depression, are invisible. Secondly, in many instances, a person's disability is not an indicator of that person's intelligence or ability to be a successful attorney.

According to an American Bar Association membership survey, only 8% of lawyers identify as having a disability. To me, this seems shockingly low. The legal profession should make a conscious effort to include lawyers with disabilities and make them feel comfortable. To do this, the profession must first educate themselves and understand what disability is and what it is not.

Making the Entrance Into the Profession More Accessible

Every lawyer can commiserate with the misery the bar exam brings or even the misery the Multistate Professional Responsibility Exam brings. For lawyers with disabilities, they can bring another kind of misery.

Requesting accommodations for these exams is unduly burdensome. In addition to the questions most accommodation request forms ask — most accommodations questions are limited to why the accommodation is needed because of your disability — the professional responsibility exam and some bar exam boards ask questions about any prior treatments you have tried to mitigate the effects of your disability and the outcomes of those treatments.

When I called the National Conference of Bar Examiners to push back on these questions, arguing that they were a bit invasive, I was told I would need to get rediagnosed in order to receive any kind of accommodation. While I fully understand that some disabilities, for example, a broken arm, may require a rediagnosis, it cannot be a one-size-fits-all rule. For instance, cerebral palsy is a lifelong disability that is usually diagnosed within the first few years of a person's life, and requires timely and expensive tests for diagnosis purposes.

Further, many applicants of the Multistate Professional Responsibility Exam and the bar have their accommodations denied, even when other institutions have granted them similar accommodations. My application for accommodations during the professional responsibility exam was partially denied without an explanation, even when I received the same accommodation on the ACT and the LSAT law school aptitude test.

One state's board of bar examiners denied accommodations for one of my colleagues, telling her that because she was diagnosed with attention deficit hyperactivity disorder, known as ADHD, in law school and not earlier in life, she did not qualify for accommodations.

The legal profession needs to change its perception of accommodations and understand that accommodations do not give someone an unfair advantage, but rather give the applicant the opportunity to be on the same playing field as their peers. It is important that we figure out how to grant accommodations that are less burdensome to those with disabilities while maintaining the integrity of these tests.

Becoming Aware of the Role the Profession Has on Disabilities

In recent years, society has learned more about disabilities such as depression and anxiety. An ABA and Hazelden Betty Ford Foundation study found that lawyers are 3.6 times more likely to suffer from depression, with many lawyers saying that the stressful demands of their jobs contribute to their symptoms.

While many of us wish we could make the demands of our jobs less stressful, this is not always easy. However, there are things some law firms and employers could do to ease the stress.

Billable hours are a crucial part of a law firm's business model, but they can be the source of stress and so thought needs to be given as to the effect of those targets and how to help attorneys manage them.

Law firms should also establish firmwide programs that focus on the mental well-being of their lawyers to help them relieve stress. Next, every lawyer deserves a break and vacation can be a great way for an attorney to have some down time and recharge. However, many attorneys still end up working during vacation despite their out-of-office message. It is important that law firms and employers honor a lawyer's vacation time and allow them time to truly unplug without having to be tied to work.

Conclusion

Lawyers with disabilities are included because of the ADA, but the number of attorneys who identify as having a disability is still shockingly low. This is a signal that law firms need to do more on education around disability awareness to make lawyers more comfortable in self-identifying and help change the legal culture to mitigate any disability that may arise from it. Let's not only recognize the strides we have made in the last 30 years since the passage of the ADA, but let's strive to make the next 30 years something to celebrate.

Danielle Liebl is an associate at Reed Smith LLP.  

 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

This article was previously published in Law360. Reprinted with permission of the author and Law360.

 

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Announcing Two Exciting Fall Events: 2020 Executive Experience, Virtual Experience

Posted By Administration, Monday, August 10, 2020

NCBA is optimistically proceeding with its plans for a new event, the 2020 Executive Experience, to be held at the JW Marriott Phoenix Desert Ridge on October 21 -23. The JW Marriott has implemented health measures due to COVID-19 including enhanced cleaning, social distancing, touchless registration, modified seating layouts, and modified dining options. The Executive Experience is three days of programming geared toward owners, managing partners, C-level executives, and decision-makers. The topics will range across several areas of practice management and will include a variety of interactive formats and expert speakers. We continue to monitor federal, state, and local health and safety guidelines related to the COVID-19 virus. Registration is risk free; cancel up through October 13 for a full refund. Details here.

We are also pleased to offer the 2020 Virtual Experience, a virtual educational series with CLE. Events will be held on August 19, September 23, and October 21 - 22. Up to 12 CLEs are being offered for just $349. That’s less than $30 a CLE! Visit the Virtual Experience homepage for the lineup of scheduled educational sessions presented by subject matter experts.

Support NCBA by attending the NCBA Executive Experience in person or via the Virtual Experience education series. Your registration fees are key to NCBA’s ongoing programs and advocacy efforts during these challenging times for our industry. 

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The Murky Problem of Enforcing Post-Petition Consumer Debt in Chapter 13

Posted By Administration, Thursday, August 6, 2020
Updated: Tuesday, August 4, 2020

By Stephen W. Sather

Barron & Newburger, P.C.

What happens when a debtor in an active chapter 13 case incurs debt post-petition and does not pay it? The answer requires a slog through multiple code sections and even then, the answer is murky.

The Bankruptcy Code is largely organized around the distinction between pre-petition and post-petition events. The filing of a bankruptcy petition creates an estate consisting of all legal and equitable interests of the debtor in property.[1] Pre-petition debts are dischargeable while post-petition debts are not.[2] Most of the specific subsections of the automatic stay refer to debts which arose pre-petition.[3]

This becomes more difficult when dealing with a chapter 13 debtor. If a chapter 13 debtor incurs new debt post-petition, the provisions of the automatic stay which prohibit “the commencement … of a …action or proceeding against the debtor that was or could have been commenced before the commencement of the case”[4] does not apply because the creditor could not have sued to enforce a debt that did not exist prior to bankruptcy. However, another provision of the stay prohibits “any act to obtain possession of property of the estate.”[5] In chapter 13, property of the estate includes all property that the debtor acquires post-petition and all earnings from services performed by the debtor post-petition.[6] Thus, a creditor can violate the automatic stay by attempting to collect a post-petition debt from property of the estate.[7]

So, what can a creditor do when a debtor in an active chapter 13 proceeding fails to pay a debt incurred post-petition? The safest course of action is to do nothing and wait for the case to be dismissed or discharged. Once the case is over, the creditor would be free to collect the post-petition debt.[8]  Since most chapter 13 cases are dismissed prior to completion of the plan,[9] odds are that the creditor will not have to wait for the full plan to complete. While this option is safe, it does not get the debt paid.

A second option is to contact the debtor and request payment. So long as the creditor makes explicit that it is attempting to collect a post-petition debt and does not take any affirmative steps to recover property from the debtor, this should be a safe course of action. While a cynical debtor’s lawyer might assert that the only property from which the debtor could pay the debt is property of the estate, this is not necessarily true. The debtor could pay the debt by liquidating exempt property or it could be a case where a plan has been confirmed and the property of the estate has revested in the debtor.

The creditor could also file suit against the debtor.[10] There are two problems with this strategy. The first is that debtor’s counsel mistakenly believes that the creditor is attempting to collect a pre-petition debt and requests sanctions. While the creditor should win, it will incur expenses. The other problem is that once the collection process is commenced, the creditor may take the next step of seizing property which would be a violation of the stay.[11]

The Bankruptcy Code provides one option for dealing with post-petition debts in chapter 13, but it is not a good one.  The Code allows a creditor to file a proof of claim for a consumer debt that arises after the date of the petition.[12] The problem to using this option is that the claim, if allowed, would be treated as a pre-petition claim and receive the same distribution as other pre-petition creditors. If the plan provides for a 5% distribution to unsecured creditors, it is better to wait to see if the debtor’s case is dismissed. The other problem is that a claim based on a consumer debt can be disallowed if the debtor could have obtained permission from the trustee but did not do so.[13] Since it is unlikely that the debtor requested permission to incur new debt, any claim filed would be subject to being denied.

In a serious case, the creditor might wish to file a motion to lift the automatic stay or even move to dismiss the bankruptcy case. A creditor could seek relief for “cause”[14] on the basis that the debt was incurred post-petition and the debtor did not disclose the bankruptcy (assuming that is true). The creditor could also file a motion to dismiss the bankruptcy on the basis that the debtor was incurring debt post-petition and then not paying it. Filing either of these motions with respect to a $1,000 debt would be cost prohibitive. However, there could be cases where it would make sense.

        


[1] 11 U.S.C. §541.

[2] 11 U.S.C. §727(b).

[3] 11 U.S.C. §362(a)(1), (2), (5), (6), (7) and (8).

[4] 11 U.S.C. §362(a)(1); In re Lynch, 2011 Bankr. LEXIS 956 (Bankr.N.D. Ia. 2011).

[5] 11 U.S.C. §362(a)(3).

[6] 11 U.S.C. §1306(a).

[7] Cano v. GMAC Mortgage (In re Cano), 410 B.R. 506, 524 (Bankr. S.D. Tex. 2009).

[8] In re Franco, 2008 Bankr. LEXIS 4281 (Bankr. E.D. N.C. 2008).

[9] Ed Flynn, Dead-on-Arrival Cases (at Bankruptcy Court), Am.Bankr.Inst.J. (Jan. 2018), http://abi-org-corp.s3.amazonaws.com/journals/numbers_01-18.pdf.

[10] Groner v. Miller (In re Miller), 262 B.R. 499 (9th Cir BAP 2001)(holding that creditor could seek sanctions against debtor for post-petition conduct in refusing to obey a subpoena but could not collect from estate property).

[11] In re Jackson, 403 B.R. 95 (Bankr. D. Ida. 2009).

[12] 11 U.S.C. §1305(a)(2).

[13] 11 U.S.C. §1305(c).

[14] 11 U.S.C. §362(d)(1).

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Maryland Court Limits Reach of State Debt Collection Law

Posted By Administration, Wednesday, July 8, 2020

By Ronald S. Canter, Esquire

The Law Offices of Ronald S. Canter, LLC

Maryland is one of a number of jurisdictions that have enacted state law restrictions on consumer debt collection.[1] However, unlike the Federal Fair Debt Collection Practices Act, the Maryland Consumer Debt Collection Act (MCDCA) requires proof of actual damages.[2] Some other state laws similarly require proof of actual damages[3] while others mirror the FDCPA and allow for statutory damages.[4]

The MCDCA prohibits both a consumer creditor and/or a third party collector from making a “claim, attempt or threat(s) to enforce a right with knowledge that the right does not exist.” See, §14-202(8), CL Article. In Chavis v. Blibaum Associates, P.A., __ Md.App. __, 2020 WL 3603741 (July 2, 2020), the Maryland Court of Special Appeals held that although §14-202(8) may be used by a debtor challenging the methods of debt collection, the reach of this restriction cannot be used to challenge the amount of the debt.[5] In Chavis, the debtor contended that a Maryland collection attorney violated §14-202(8) by collecting 10% interest on a judgment for the rent of residential property even though Maryland law limits judgment interest to 6% on a judgment for rent. See, Ben-Davies v. Blibaum & Associates, P.A., 457 Md. 228, 232-33 (2018) (§11-107 CJ Article, allows a general post-judgment rate of 10% but a reduced rate of 6% applies to “money judgments for rent of residential premises”).

The Court’s decision in Chavis distinguished other Maryland rulings that held collectors liable by attempting to collect a fee or charge not allowed by law.[6] In doing so, the Court limited the reach of the MCDCA to challenges to the legal right to collect the debt in contrast of challenges as to the amount of the debt.

The Plaintiff in Chavis also claimed that the landlord/property owner violated the Maryland Consumer Protection Act (MCPA), §13-301(1), CL Article[7] by filing a post wage garnishment seeking 10% interest. The Court held that the landlord was not liable “based on their interpretation of a novel legal issue”[8] that was only resolved by the 2018 Court of Appeals opinion on the certified question of law in Ben-Davies v. Blibaum & Associates. The Court went on to reject the tenant’s argument that a 2018 amendment to the MCDCA, which added a provision making a collector liable under the MCDCA for any conduct “that violates . . . the Fair Debt Collection Practices Act” applied to a pre-2018 claim, holding that the 2018 amendment would not be applied retroactively.

The tenant did not pursue an independent FDCPA claim because the suit was filed after the expiration of the FDCPA one year statute of limitations. However, the Plaintiff was able to pursue state law claims which were subject to a longer three year statute of limitations. This delay benefited the Defendant law firm because it is likely that an FDCPA claim alleging the collection of excessive post-judgment interest would succeed. See, e.g., Shepherd v. Liberty Acquisitions, LLC, 2012 WL 2708518 at *5 (D. Colo. July 9, 2012), order vacated in part on other grounds, 2013 WL 1117046 (D. Colo. March 15, 2013) (holding collector liable for charging excessive post-judgment interest).

Although in the aftermath of the 2018 Amendment, consumers are now able to pursue MCDCA claims under its three year statute of limitations based on a collector’s violation of the FDCPA, unlike the FDCPA’s strict liability feature allowing statutory damages of up to $1,000.00; a consumer must establish actual damages in order to prevail on a claim under the MCDCA. 

______________________________

[1]  The Maryland Consumer Debt Collection Act is codified at §14-201, et. seq. CL Article, Md. Ann. Code.

[2] See, §14-203, CL Article. (imposing liability for damages proximately caused by violation, including damages for emotional distress without accompanying physical injury).   

[3] See, Kaymark v. Bank of America, N.A., 783 F.3d 168, 181 (3rd Cir. 2015) (Pennsylvania’s Fair Credit Extension Uniformity Act requires proof of ascertainable loss).

[4] See, e.g., Fla.Stat. §559.77(2) (allowing statutory damages of up to $1,000.00) and §1788.30, Cal. Civ. Code (allowing “penalty” of not less than $100.00 nor greater than $1,000.00).

[5] Compare, 15 U.S.C. §1692f(1) of the FDCPA which outlaws the collection of any amount not authorized by the agreement or permitted by law. 

[6] See, Allstate Lien & Recovery Corp., 219 Md. 575, 777 (2014) (garageman violated §14-202(8) by assessing a $1,000.00 processing fee for placing a lien for unpaid vehicle repairs) and Mills v. Galyn Homeowner’s Ass’n, Inc., 239 Md.App. 663, 676 (2018), aff’d sub. nom., Anderson & Lawrence Prof. Servs., LLC v. Mills, 467 Md. 126 (2020) (consumer may pursue claim under §14-202(8) based on allegation that Homeowner’s Association governing documents did not permit levying of challenged fine).  

[7] The MCPA cause of action was limited to the property owner Defendant because the MCPA includes a learned profession exemption which excludes claims against attorneys.

[8] Chavis at *7.

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The Importance of Female Mentorship: Tips for Lawyers on the Rise

Posted By Administration, Monday, July 6, 2020

By Ann E. Lemmo

Clark Hill PLC

July 1, 2020

For the past 20 years, law schools have seen a roughly equivalent number of men and women enrollment. It was not until 2016 that more women were enrolled than men. However, as is obvious from your first few months as a new attorney, law school is not reality. Women remain a minority in the courtroom and as leaders in practice areas. According to research conducted by the American Bar Association’s Commission on Women in the Profession and the Minority Corporate Counsel Association, women lawyers, and especially women of color, are more likely than their male counterparts to be interrupted, to be mistaken for nonlawyers, perform more office housework and to have less access to prime job assignments.

This reality isn’t exclusive to attorneys. According to a study conducted by the Harvard Business Review, 65.9% of all interruptions on the U.S. Supreme Court were directed at the three female justices on the bench (Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan).

Thus, the importance of finding a woman sponsor is essential for a young woman’s successful legal career. A sponsorship is when a sponsor uses her clout to advocate for a professional’s advancement within her organization. While an ordinary mentor relationship provides guidance on practicing in the field, building a book of business, and handling clients, a women sponsorship includes guidance on the unspoken rules of the job such as navigating a field of only men, the correct appearance for the courtroom, and the many other roadblocks that a regular mentor/mentee relationship may lack. A sponsor is key because they not only are a teacher, but an active advocate for the advancement of a young lawyer’s career.

Qualities to Look for in a Sponsor

When seeking a sponsor, consider the following qualities.

  • A hands-on teacher. As Benjamin Franklin said, “Tell me and I forget, teach me and I may remember, involve me and I learn.” While law school teaches you the substance of the law, a mentor teaches you the practice of the law. The more a sponsor can involve you in their practice, such as a point person for clients, invitations to networking events, and drafting articles, the more you will gain out of the experience. A recent study by UC Berkeley’s Haas School of Business found that women actually benefit more from such mentoring than men. A sponsor can expand professional networks by building social skills, providing a guide for the appropriate social skills and providing access to organizations and networks.
  • A pathfinder. There is no reason to reinvent the wheel; a good sponsor shows the pathway that you may not have known existed to success as a young lawyer. As a new practitioner, it is always helpful to see the possible pathways for your career from someone who has already been through it. Sponsors are key to helping you get to where you intend to go.
  • An objective adviser. What is important for growth is recognizing personal flaws. Recognizing personal flaws is harder to do when it relies on self-evaluation. Sponsors provide that third-party view to tell you areas you can improve. Sponsors also provide advice regarding specific hurdles regarding being a woman in a male dominated field. A part of the realty of this advice for women includes appearance and executive presence. For example, some judges have preferences for whether a woman wears a skirt or pantsuit. Another example is that jurors pay specific attention to women attorney’s outfits, and thus women need to consider the importance of the color, make and style of your outfit and how it can detract or add to your case when presenting it to a jury.
  • An advocate. Nowadays, mentoring may not be enough. Women need women with clout to help elevate them in the work field by advocating her mentee for the high-stakes assignments that are a prerequisite visibility and a promotion.

In addition, you can be an asset and not a burden to your sponsor. You can be a soundboard, provide points of view, and have respectable discussions and exchanges that can help your sponsor assess projects they are working on, or even work-life hurdles that they experience.

Finding a Sponsor

The first important step for finding a sponsor takes some self-reflection. It is important to determine your goals and what you would like to gain out of the relationship. The best way to do this is to think about your end goal. What is the type of law career you are looking for?  Next, who do you look up to? Whose job would you like to have in the next five, 10 or 15 years? Do you have a role model where you work? Sometimes this person is outside of your practice group.

The best resource for finding a sponsor may be your firm. See if your firm offers mentor/mentee programs or women specific programs. If there is no program, besides encouraging your firm to begin one, seek out opportunities to connect with the potential sponsor you identified. Ask for a call, a meeting, or get involved in the activities that the mentor is involved in.

In order to succeed, young women attorneys need not only an adviser and pathfinder, but a trusted advocate. This way, maybe law school will for once actually reflect a reality and women will be less of a minority in the legal leadership roles.

Ann E. Lemmo is an associate in Clark Hill’s banking and financial services group, focusing on consumer financial services regulatory and compliance. She provides consultation, litigation and regulatory advice to financial institutions, law firms and credit reporting agencies. She also provides advice to venture capital firms in the fintech area. 

Reproduced with permission of the author.

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SCOTUS Leaves CFPB Intact, But Allows for Removal of Director for Any Reason

Posted By Administration, Monday, June 29, 2020

June 29, 2020

By Brit Suttell

Barron & Newburger, P.C.

Earlier this morning the United States Supreme Court issued its long-anticipated decision in Seila Law LLC v. Consumer Financial Protection Bureau. In the opinion written by Chief Justice Roberts, the Court held that Congress overreached when it limited the President’s power to remove the single director of the Bureau. Although some observers thought that the Court might remand based on standing grounds, the Court found there was an active and live controversy between the parties.

Upon holding that the CFPB’s structure was incompatible with the structure of the Constitution and the separation of powers, the Court next turned to whether that provision (removal of the Director for cause, only) could be severed. This brought more agreement among the justices who held, 7-2, that the provision could be severed. 

The question left unanswered by the Court was whether the civil investigative demand propounded upon Seila Law was enforceable. The CFPB argued that all acts of the CFPB had been properly ratified, but the Court remanded the case to the Ninth Circuit Court of Appeals “to consider whether the civil investigative demand was validly ratified.” A copy of the opinion can be found here.

 

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Historic Decision to Celebrate Pride

Posted By Administration, Wednesday, June 17, 2020

by Nathan Willner

NCBA Government Affairs Officer

It could not be more appropriate as those around our country celebrate Pride Month that the U.S. Supreme Court (SCOTUS) rendered its historic ruling on workplace discrimination.

In a 6-3 decision in Bostock v. Clayton County, the SCOTUS held that gay and transgender employees can institute litigation against their employers under Title VII for discriminating against them because of their sexual orientation or gender identity.

Title VII of the Civil Rights Act of 1964 outlaws employment discrimination on the basis of race, color, religion, sex and national origin.

While previously a majority of states permitted discrimination based on a person’s sexual orientation or gender identity, the ruling in this matter provides for actions to be brought under Title VII. 

The Court, in an opinion written by Justice Neil Gorsuch, began its analysis by considering the definition of the word “sex.” The Court noted that Title VII prohibits taking certain actions “because of” sex, meaning “sex” can be one of multiple factors. 

Justice Gorsuch noted: “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: . . .  If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” 

Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.

Justice Samuel Alito wrote a lengthy dissenting opinion which Justice Clarence Thomas joined. Alito described the majority opinion as “legislation.” He noted that neither “sexual orientation” nor “gender identity” are listed in Title VII as grounds for prohibited discrimination. 

Justice Brett Kavanaugh wrote a shorter, solo dissent opining that it is Congress’ and the President’s responsibility to amend Title VII, not the Court’s, but also applauded the hard work by the LGBTQ+ community.

National Creditors Bar Association is committed to diversity and inclusion and recently formed a Diversity & Inclusion Committee. If you are interested in joining, please reach out to robin@creditorsbar.org.

 

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Collectors Poised to Benefit from Appeal Court Ruling Dismissing FDCPA Lawsuit for Lack of Standing

Posted By Administration, Tuesday, June 16, 2020

By Ronald S. Canter, Esquire

The Law Offices of Ronald S. Canter, LLC

In Frank v. Autovest, LLC, 2020 WL 3053199 (D.C. Cir., June 9, 2020), the United States Court of Appeals for the District of Columbia Circuit dismissed for lack of Article III standing a consumer’s FDCPA lawsuit based on the filing of false affidavits in a debt collection lawsuit.

Phyllis Frank was first sued in state court by the purchaser of her delinquent automobile loan. Verifications supporting the collection lawsuit falsely stated that the affiants were employed by the debt buyer, when, in fact, the affiants worked for the collection agency hired by the debt buyer. The consumer also alleged that the debt buyer’s attorney filed a false affidavit in support of a request for attorney fees.

After the debt collection case was dismissed, the consumer filed an FDCPA suit based on the filing of false affidavits in the collection case. The Federal District Court hearing the case granted the collector’s motion for summary judgment on the basis that the false statements in the affidavit were immaterial.  The appellate court took a different approach, dismissing the case for lack of standing.

Because Federal Courts are courts of limited jurisdiction, the appellate court first examined whether the consumer had standing under Article III of the United States Constitution which requires a “concrete and particularized injury and fact traceable to the Defendant’s conduct and redressable by a favorable judicial order”. See, Frank v. Autovest at *2. The consumer’s deposition testimony revealed that she did not take any action or fail to take any action because of the alleged false affidavits and that she was not subjectively confused or misled by the affidavits. The Court ruled that the consumer lacked standing and explained the difference between the objective “unsophisticated consumer” standard used to analyze claims under the FDCPA with the subjective standing inquiry, namely whether the Plaintiff suffered a cognizable injury based on misrepresentations in the affidavits. 

The Court recognized that, in certain circumstances, a Plaintiff may be able to submit evidence of investigatory injuries such as resources spent in uncovering or confirming the truth or falsity of the statements. The Court held that a Plaintiff suffering a purported “informational injury” through denial of access to truthful information must establish that he or she suffered some particular harm that Congress sought to prevent by requiring the truthful disclosures. However, the Court reasoned that because the Plaintiff disclaimed detrimental reliance or any other harm based on the alleged false affidavits, she lacked standing to bring her claim. Frank v. Autovest at *3.

This decision may represent a turning point in FDCPA litigation where only statutory damages are sought. Defense counsel seeking to pursue a lack of standing argument should study this decision thoroughly and prepare for pre-trial discovery focusing on the Plaintiff’s detrimental reliance on alleged false statements and any harm flowing therefrom in order to put a standing argument in the proper framework.

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NCBA Members Demonstrate Good Judgment; Maryland Court to Vacate Hundreds of Affidavit Judgments

Posted By Administration, Thursday, May 21, 2020
Updated: Tuesday, May 19, 2020

by Nathan Willner

Government Affairs Officer

The COVID-19 pandemic resulted in many court systems throughout the United States shutting their doors. Pursuant to the Administrative Order issued by the Maryland Judiciary, court offices, administrative offices, units of the Judiciary, and the Offices of the Clerks of the Circuit Courts, and the clerks’ offices of the District Court were closed beginning on March 17, 2020 through June 5, 2020. During this time, the District Court matters to be heard included matters that were absolutely necessary, including bail reviews/bench warrants, emergency evaluation petitions, and quarantine and isolation violations. But as all other civil matters were to be stayed during this time, many members of NCBA's state creditors bar association (SCBA) affiliate Maryland-DC Creditors Bar Association were surprised to see that Affidavit Judgments continued to be entered by the Baltimore City District Court.

Many attorneys would have taken the position that this is a court issue; if the court feels it appropriate to enter these judgments, who are they to be concerned? In Maryland, after service of the complaint, should the consumer not file a Notice of Intention to Defend, the complaint is forwarded to a Judge for review. In most cases, the uncontested matter results in the routine entry of an Affidavit Judgment. Once a judgment is entered, the plaintiff can exercise further collection actions through garnishment or attachment as prescribed by Maryland law.

The problem that immediately jumped out at the Maryland attorneys was, what if the reason the consumer didn’t contest the matter was, they didn’t think they had to. Courts were closed, matters stayed, and deadlines extended, so it would seem reasonable for someone to think that they could wait to take action to deal with the lawsuit once the courts reopened.

The lawyers reached out to the Court and asked if maybe the entry of these judgments was just an oversight, or they were left over from matters that were to be decided before the pandemic’s full affect was reduced to an Administrative Order. What they discovered, however, was that this local court felt that since these cases were uncontested, they might as well deal with them administratively now, before the massive influx of new cases starts to bog the court systems down. One response the lawyers received was, if consumers felt that the judgments were entered in error, they could always file a motion with the court to vacate the judgment. This would, however, put the burden to deal with the judgment on the consumer, many who may not know what their rights are especially during the unprecedented pandemic-related court closures.

Feeling that consumers should not be placed in this situation, NCBA members under the leadership of the Maryland-DC Creditors Bar Association, were not satisfied by the rationale being given to them. They took their concerns to the Chief Judge of the District Court of Maryland. Joining with traditionally consumer-centric pro bono legal service groups, they explained that the entry of these judgments - even where uncontested - was just not the right thing to do. Basic due process and fairness are the cornerstone of our judiciary and entry of civil judgments at this time seemed to be in direct contravention of these cherished principles.

As a result of the local SCBA’s advocacy, partnering with consumer groups, the Chief Judge agreed, this was not the time to enter Affidavit Judgments even if procedurally allowed. The Court announced that all of the judgments entered will be vacated and reset in the ordinary course once the Maryland Court system resumes normal operations.

NCBA could not be prouder of the actions taken by the MDCBA leadership. While attorneys have the obligation to zealously represent their clients, they also have the ethical and moral obligation to make sure there is a fair and transparent system that all litigants can adhere to. It would have been understandable to just take no action and let the Court deal with the concerns, but that’s not who our members are. Just because you can do something doesn’t mean you should. NCBA members adhere to a code of conduct that mandates strict adherence with the law and the highest level of professionalism. There is never a wrong time to demonstrate good judgment. 

 

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The Answer is NOT "I'm Going to Disneyland" - Court Issues Temporary Restraining Order in Massachusetts

Posted By Administration, Thursday, May 7, 2020
                           

By Manuel H. Newburger

Barron & Newburger, PC

 

Hey, Collection Industry. You just won a temporary restraining order (TRO) against Massachusetts Attorney General Maura Healey, blocking enforcement of her emergency regulations that bar calls from debt collectors and litigation by both debt collectors and creditors. What are you going to do now?

If you collect in Massachusetts it is likely that you are asking yourself that question. I will suggest some relevant considerations for determining what you do next.

The order is a temporary restraining order. Such an order is intended to protect the status quo until a final determination of the merits of the plaintiff’s claim. ACA International’s Complaint seeks the final remedies of declaratory and permanent injunctive relief. Until those claims are decided the ACA has not won the war, but it has certainly won the first battle. However, what if the Attorney General wins at trial? What if she appeals? Are you willing to take on for your business the risk of ignoring the rules before there is a final judgment?

Realistically, the order is well-written. It preliminarily finds the constitutional defects that I have raised in webinar discussions for the last few weeks. So setting aside the fact that the final battle has not yet been fought, what does this order mean?

The starting point for your analysis is really the final sentence of the order: “This Order is intended to have no impact on any other law or regulation regarding debt collection that is now in force.” The TRO does not impair the preexisting Massachusetts Attorney General Debt Collection Regulations. It does not impair the FDCPA. The judge has made that clear. Therefore, you cannot call consumers at times or places that you know or should know are “inconvenient.”  In normal times, this prohibition is used mostly to limit the timing of calls. but these are normal times.

The problem is not limited to Massachusetts. As shelter-in-place orders continue, businesses stay closed, and thousands of people a day are diagnosed with COVID-19, could any of the following make a call “inconvenient”? 

  • The consumer has been furloughed for over a month and has no idea if or when the furlough will end.
  • The consumer has been informed that her employer is filing for bankruptcy protection and is not reopening.
  • The consumer has children whose school will not be reopening until fall and who must be home-schooled.
  • The consumer has been stuck alone, sheltering in place, and is severely depressed.
  • The consumer is recovering from COVID-19.
  • The consumer is suffering from COVID-19.
  • The consumer has a family member who is recovering from COVID-19.
  • The consumer has a family member who is suffering from COVID-19.
  • The consumer has a family member who has died from COVID-19.

To some degree these issues reflect problems with which debt collectors deal every day. The difference is that, in the COVID-19 era, the number of these issues that collectors encounter are likely to be substantially greater.

Nothing in the TRO excuses debt collectors from the duty not to communicate with consumers a times or places that they know or should know are inconvenient. Nothing in the TRO prevents Attorney General Maura Healey from opening an investigation on any debt collector about whom her office receives complaints about harassing or inconvenient calls. You say your people are “solid” and well trained? No problem. After you produce to the AG all of your policies and procedures, hundreds (or even thousands) of collection files, and hundreds (or even thousands) of call recordings you just have to hope that: (1) the AG agrees with you; and (2) all of your calls were flawless. You can meet that standard, right?

I said weeks ago that your collectors need to be “compassionate questioners.” I stand by that. They are your first line of defense. It is not about Massachusetts; it is about every state. The questions your collectors ask are the start of your defense.

If you ask a consumer if she is working, and she says “yes,” your collector has just provided you with an argument for why it is not such a bad thing to call that consumer. Asking “how are you doing” opens the door to gathering useful information. Saying: “It sounds like things are pretty tough right now. Is there anything we could do to make it possible for you to resolve your account?” may not get you a payment, but it may get you respect, praise, and (most importantly) a willingness to talk to you next month as things improve.

Can you call into Massachusetts? As of today, technically, yes. My hope is that this sparks an appropriate internal discussion. 

 

Manny

 


For more information or questions regarding this NCBA Member Briefing please contact Manny Newburger at mnewburger@bn-lawyers.com

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