A number of bills impacting consumers and consumer law are still actively being debated in the Oregon legislature. The consumer law section is tracking these bills and you can too by clicking the following link:
https://www.osbar.org/pubaffairs/reports/BarGroupBillSummary.html?bargroupid=838
Is there a consumer-related bill that you think we should be tracking? Let us know by e-mailing the executive committee at: [email protected]
By Matt Kirkpatrick
The Consumer Financial Protection Bureau provided Congress with its 2020 Consumer Response Annual Report on March 24, 2021. As one might expect, the Report shows that 2020 was a particularly difficult year for consumers. Before the pandemic the CFPB received approximately 300,000 consumer complaints each year. In 2020, more than 540,000 consumers filed complaints, an 80% increase from the pre-pandemic average. While the Report notes that only 32,100 complaints (about 6%) used words related to the pandemic, this article highlights ways the pandemic impacted consumer complaints to the CFPB last year.
Interestingly, the number of complaints related to debt collection tactics and threats actually decreased last year. Citing the CFPB’s March 2021 FDCPA annual report, the Report speculates this decline may be related to pandemic-related restrictions states have placed on debt collection activities. However, debt collection was the second most complained-about issue among servicemembers. There were complaints from tenants being pursued by debt collectors after vacating their apartments.
It is perhaps unsurprising that many consumers reported issues with online banking and mobile banking applications, given pandemic-related stay-at-home orders and limited access to physical bank branches. One large provider reported a 200% increase in new mobile banking registrations early in the pandemic. Complaints included access issues, errors and delays in online bill payments, and deposit discrepancies.
With respect to mortgage-related complaints, the Report notes that CARES Act’s homeowner hardship forbearance provisions and the federal- and state-issued foreclosure moratoriums appear to have had their intended effect. While mortgage-related complaints increased in spring 2020, they decreased for the rest of the year. Overall, in 2020, complaints about struggling to make mortgage payments were down 32% from the average for the prior two years. In contrast, complaints about applying for a mortgage increased 88%, which the Report attributes to increased activity due to low interest rates.
Complaints related to student loans were similarly a mixed bag in 2020. Such complaints were down 45% overall from the prior two years’ average, probably due in large part to the CARES Act’s borrower relief provisions. However, complaints were generated by the considerable confusion over pandemic relief measures, including the different treatment of Education Department-owned loans in contrast to, for example, student loans owned by states, commercial lenders, schools, and other private entities, which do not qualify for relief under the Act. Difficulties enrolling in or recertifying income driven repayment plans also lead to many complaints, including by borrowers whose payments increased after they were incorrectly required to recertify their plans. Borrowers also continued to complain about the Public Service Loan Forgiveness program, now including servicers incorrectly treating pandemic-related suspended payments as non-qualifying payments, contrary to the CARES Act.
Money services complaints increased significantly in 2020, with complaints about domestic money transfers up 47% compared to the prior two years’ average, digital wallet complaints up 126%, and fraud scam complaints up 41%. The Report found it notable that delays in fund deliveries exacerbated consumers’ difficulties in responding to the pandemic.
Given that the pandemic’s effects discussed above cut both ways in terms of the volume of consumer complaints, one might ask what drove the overall 80% increase in complaints in 2020. The answer: consumer reporting agencies. The CFPB received 319,300 credit or consumer reporting complaints last year. Already the complaint leader and trending upwards in years past, credit report-related complaints increased 129% in 2020 from the prior two years’ average. The Report found this increase to be concentrated in complaints about inaccurate information and the “Big Three” credit reporting agencies (“CRAs”)—Equifax, Experian, and TransUnion—a significant portion of which were related to identity theft. Complaints about incorrect information increased 147% and complaints about investigation problems increased 139%. The Report further noted that CRAs stopped providing complete and accurate responses to many complaints last year. It promised to issue a separate report later this year to further analyze the credit reporting complaints and the CRAs’ responses.
It has been a difficult year for most of us, including as consumers. It will be interesting to see how the trends identified in the CFPB’s 2020 Report translate into new demand for consumer legal services.
In March the Oregon Department of Justice released its list of Top Ten Consumer Complaints for 2020. Leading the way with 1,035 complaints were issues related to Telecommunications. Complaints relating to “Grocery, Food and Beverage” made the list for the first time due to allegations of price gouging during the COVID-19 pandemic.
The 2020 Top Ten List is:
For more information visit: https://www.doj.state.or.us/media-home/news-media-releases/top-10-list-of-consumer-complaints-for-2020/
By Emily Rena-Dozier
Many landlords use tenant screening companies — like RealPage, AppFolio, and CoreLogic — to vet tenant applications for credit history, rental history, and criminal history. Unfortunately, while these services provide greater efficiency for landlords, they come with significant risks for tenants. As recent investigative reports have shown, these automated background checks are rife with errors. As a result, tenants may be denied housing based on records from other individuals who merely share a last name, or a previous address.
What recourse do tenants have when their applications are denied based on faulty information? Even if a tenant is able to determine what the error was, the time-sensitive nature of rental housing applications means that a landlord has often moved on to the next applicant by the time the problem is identified and corrected. Even identifying the error can be difficult; in Oregon, the landlord is only required to provide the tenant with the contact information for the screening service.
Tenant screening services — largely automated and algorithm-based — rely heavily on credit reports and scrape information from court records and other sources of public information. Although tenant screening companies are regulated under consumer protection laws, the rules are more lax for tenant screening than they are for other forms of credit reporting. Unlike with credit reports, there’s no central system that a tenant can consult for a copy of their screening record. This means that tenants may have no recourse other than to sue screening companies for violations of the Fair Credit Reporting Act, or, in at least one current case, violations of the Fair Housing Act.
Consumer lawyers have an important role to play in advocating for stronger protections for tenants, greater regulation of the tenant-screening industry, and, where necessary, litigating on behalf of tenant applicants when screening errors have harmed them.
By Hope Del Carlo
Homeowners who’ve experienced a financial hardship during the COVID-19 pandemic may be eligible for help from the Oregon Homeownership Stabilization Initiative (OHSI). OHSI distributed the U.S. Treasury’s Hardest Hit funds that were allocated to Oregon homeowners in the wake of the Great Recession. Those programs have ended, however the new COVID-19 Mortgage Support program is open.
Borrowers who qualify receive forgivable assistance, as long as they don’t sell the home or refinance for cash for at least five years.
In order to be eligible to receive COVID-19 Mortgage Relief, the applicant must:
For more information on the program and how to apply, visit oregonhomeownerhelp.org.
By Emily Templeton, Lewis & Clark Law School, 2021.
It’s been over two years since Oregon class action lawyers Michael Fuller and Kelly Jones filed a false advertising lawsuit against national food retailer Fred Meyer. Class members allege Fred Meyer violated Oregon’s Unlawful Trade Practices Act (UPTA) by charging customers hidden bottle deposit fees on exempt beverages that could not be refunded under Oregon law.
Specifically, the lawsuit alleges Fred Meyer made false misrepresentations and
omissions when it charged customers more than certain beverage items were
actually worth in violation of Oregon’s consumer protection laws.
In its motion to dismiss, Fred Meyer argued that (1) the district court lacked subject
matter jurisdiction; and (2) plaintiffs failed to state a claim upon which relief can be
granted. In support of the latter, Fred Meyer urged the court to require plaintiffs to
establish reliance in order to prove they incurred an ascertainable loss.
U.S. District Court Judge Michael Mosman made two important findings in his
opinion issued on November 20, 2020:
(1) The court found jurisdiction was proper in federal court because plaintiffs
were not seeking to “enjoin, suspend, or restrain” the collection of any state
“tax”; and
(2) The court found plaintiffs were not required to establish reliance when
alleging ascertainable loss under a diminished value theory.
Fred Meyer had argued that plaintiffs must demonstrate subjective reliance on a
representation, act, or omission that violates the UTPA in order to prove they
incurred an ascertainable loss.
In Pearson v. Philip Morris, Inc., 361 P.3d 3 (2015), the Oregon Supreme Court’s
majority opinion left open the question of whether a diminished value theory
requires “reliance to establish the requisite causal connection.” Judge Mosman,
citing Justice Walter’s concurrence in Pearson, affirmed plaintiffs’ assertion that
reliance is not required under a diminished value theory of liability.
Backed by the UPTA’s plain language and Justice Walter’s concurrence, the court
determined plaintiffs had adequately established ascertainable loss by showing
Fred Meyer had charged customers a price over and above the objective market
value of certain beverage items such that reliance was irrelevant. The court
reiterated, however, that a plaintiff may be required to show reliance to prove
ascertainable loss under a “refund of the purchase price” theory.
By Colin D. A. MacDonald
On October 22, the Federal Trade Commission launched ReportFraud.FTC.gov, the Commission’s new consumer fraud reporting portal. The new site replaces the FTC Complaint Assistant and provides a more user-friendly, informative, and visually appealing experience for consumers. From government imposter scams to phony weight loss claims, from abusive debt collection to deceptive auto sales, and all sorts of unwanted phone calls, text messages, and emails – we want to hear about all of them. Please help us spread the word and keep Oregonians safe from scams.
After making a report, consumers will be given tailored educational information about next steps that they can take to protect themselves. These materials will be specific to the kind of report that consumers make. If consumers wish to update a report later, they will be given a report number to do so.
The system gives consumers plenty of options for how to report scams that they are concerned about. Consumers can make reports in Spanish at ReporteFraude.FTC.gov. Reports can also be made in French, German, Korean, Japanese, Polish, Spanish, or Turkish at the Commission’s econsumer.gov website. If consumers have questions, the system has a live chat feature or consumers can still call the FTC Consumer Response Center at 877-FTC-HELP (877-382-4357) to make reports by phone. Consumers who prefer to make their report anonymously can do so (but they won’t be able to update the report later).
What happens with your reports? Like its predecessor, ReportFraud.FTC.gov sends reports into the FTC’s Consumer Sentinel Network. The FTC and its more than 3,000 law enforcement partners across the country and around the world use Consumer Sentinel to fight back against scams that hurt consumers and businesses who play by the rules. We don’t publicly post the reports and we don’t contact businesses about individual reports. We use them to build larger law enforcement actions to put an end to the fraud.
Who is reporting fraud to the FTC? Between the old FTC Complaint Assistant and our partner organizations, we gathered more than 3.2 million reports of consumer fraud in 2019 alone. Oregonians accounted for more than 33,000 of those reports, with government imposter scams and identity theft by far the most common reports from the state. You can learn more about the most common reports in the country, state, or metro area on the FTC’s website.
Protecting Oregonians – particularly the most vulnerable consumers – is a team sport. Filing a report with the FTC and seeking help from a private attorney are not mutually exclusive. This new tool in our shared toolbox will help us fight back against scammers and unscrupulous businesses. If you or an organization you are involved with have a website or social media, please consider linking to ReportFraud.FTC.gov using some of the images, videos, and social media badges available at ReportFraud.FTC.gov/Partners.
Colin D. A. MacDonald is a consumer protection attorney for the Federal Trade Commission’s Seattle-based Northwest Region. The views expressed in this article are his own and do not necessarily reflect those of the Commission or of any individual Commissioner.
Every year the OSB Consumer Law Section considers nominations for three distinct awards: the Award of Merit, Lifetime Achievement, and Professionalism Award. These awards are only given to nominees who meet the highest standards and each award is not given every year. For 2020, Kyle Iboshi, Investigative Reporter at KGW news will receive the Award of Merit, Craig Colby, now retired attorney at law, will receive the Lifetime Achievement Award, and Michael Baxter of Baxter & Baxter LLP will also receive the lifetime achievement award.
About the Awards:
The Oregon State Bar Consumer Law Section’s Award of Merit recognizes an individual’s or entity’s recent efforts that have significantly advanced consumer rights in Oregon. These efforts could include a case, advocacy initiative, program or any other work that attempts to advance consumer protections. Particular attention is paid to such achievements which required the recipient to overcome adversity and/or which improved access to justice. It may be awarded to both legal professionals and members of the public.
The Oregon State Bar Consumer Law Section’s Lifetime Achievement Award recognizes an outstanding individual who has dedicated their career to consumer protection and made a significant and sustained impact on the practice of consumer law.
About the Recipients:
Kyle Iboshi is an award-winning investigative news reporter with KGW who dedicates a substantial amount of his coverage to consumer protection issues. Last year, Iboshi’s in depth consumer protection reporting helped cause positive changes in the lives of Oregon’s most economically vulnerable citizens. His 2019-2020 series of reports titled “The Cost of Collections” examined the aggressive tactics used by the City of Portland to force people to pay up. Specifically, Iboshi’s reporting shed light on how Professional Credit Service sued an Oregon consumer twice to collect on a debt, at least a portion of which was never owed in the first place. https://www.kgw.com/article/news/investigations/city-of-portland-sent-evicted-homeowner-to-collections-then-sued-him-twice-for-water-he-never-used/283-b3aa1d5f-31f6-4f23-9a69-ce9aa7ef417b Thanks to Iboshi’s consumer protection reporting, the City of Portland actually changed the way it collects debt from Oregon’s most vulnerable consumers. Iboshi also operates as a public watchdog for consumer fraud scams. In November 2019 he dedicated an episode of his program Straight Talk to sharing some of the most common consumer complaints he gets, including the “grandparent scam.” He has helped countless Oregon consumers through his investigative reporting, and makes the job we do as consumer advocates easier by informing the public of the work we do.
Michael Baxter: Throughout his career as a trial lawyer Baxter was a champion of consumer protection in Oregon. Baxter is responsible for the landmark Oregon Supreme Court case, Parrott v. Carr Chevrolet, Inc., 331 Or 537 (2001) that assists attorneys trying UTPA cases or seeking punitive damages in a consumer protection case. Baxter is also responsible for the single largest individual consumer protection verdict in Oregon history, Miller v. Equifax Info. Servs., LLC, No. 3:11-CV-01231-BR, 2014 US Dist LEXIS 70885 (D Or May 23, 2014), which garnered him recognition by The New York Times and other newspapers. In addition to being an incredible advocate for his clients, Baxter has also always been generous to younger lawyers, and has always been happy to share his knowledge with the consumer protection bar. Baxter, along with other consumer protection stalwarts, was responsible for reviving the Oregon Consumer League in the 1990s, an organization that continues to help Oregon consumers to this day. Baxter retired this year. Congratulations on his well-deserved retirement.
Craig Colby: For the last thirty years Craig has contributed substantially in the area of landlord tenant law. For years Colby maintained hundreds of pages of Annotations to the Residential Landlord and Tenant Act which he provided for free to legal aid and related organizations to make it possible for more lawyers to represent tenants successfully and increase access to justice. Three decades ago lawyers for tenants settled eviction cases by conceding judgments of eviction to the landlords in return for delays in enforcement and tenants then had eviction judgments in the public record that blocked them from finding new rental housing. Colby created the idea of dismissing the eviction cases in return for tenant promises to move out by some agreed date down the line, coupled with stipulations for reinstatement of the case and immediate judgment that landlords could file if tenants didn’t vacate on time. The legislature adopted Colby’s scheme in ORS 105.145(2) – 105.165. Congratulations on his well-deserved retirement.
Kyle Iboshi & Craig Colby will be presented with their awards, remotely, over the lunch hour at the “Law of Landlords and Tenants” CLE on Friday, October 16, 2020. Michael Baxter will be presented with his award sometime in the future when in-person gatherings become possible again.
On Tuesday, March 17, 2020 Oregon Governor Kate Brown issued an executive order declaring an “abnormal disruption of the market,” triggering additional protections for consumers against price gouging for “essential consumer goods or services.” See ORS 401.960 – 401.970.
You can read the executive order at: https://www.oregon.gov/gov/Documents/executive_orders/eo_20-06.pdf
The statute, generally, prohibits charging unconscionably excessive prices and makes charging such excessive prices subject to regulation as an unlawful trade practice. With some exceptions, prices are presumed to be unconscionably excessive if they exceed 15% above of the price prior to the abnormal disruption of the market.
Additional information, including a link to submit written complaints, can be found on the DOJ website at: https://www.doj.state.or.us/consumer-protection/sales-scams-fraud/price-gouging/
The Oregon Department of Justice, at the request of AG Ellen Rosenblum, has also set up a dedicated hotline specifically to handle complaints related to price gouging. The hotline number is: 503-378-8442.
Despite the existence of a dedicated hotline, the Department of Justice encourages people to submit written complaints whenever possible, as written complaints often help streamline the review process allowing DOJ to prioritize the most pressing complaints.
While complaints relating to price gouging are important, the Department of Justice is treating complaints of all kinds related to COVID-19 as a priority in order to stay on top of rapidly developing trends. See, for example, action taken against a Portland CBD store with misleading advertising claiming their products could boost immunity against COVID-19:
Now that we are firmly in 2020 it is safe to start looking back at the year that was 2019.
Each year, the Federal Trade Commission releases its Sentinel Data Book, summarizing the information it has received.
The 2019 Data Book can be found here: https://www.ftc.gov/reports/consumer-sentinel-network-data-book-2019.
During 2019, the FTC gathered over 3.2 million reports nationwide. These reports are unverified and are comprised of consumer reports made directly to the FTC, along with “reports filed with other federal, state, local, and international law enforcement agencies, as well as other organizations, like the Better Business Bureau and Publishers Clearing House.”
The Data Book does not contain information regarding do-not-call violations, which are compiled in a separate report, available here: https://www.ftc.gov/reports/national-do-not-call-registry-data-book-fiscal-year-2019.
According to the Data Book Oregonians made 32,716 reports and suffered $15.5 million in total fraud losses. The median loss for Oregonians was $250.
Oregon accounted for the 7th highest number of fraud reports per 100k population behind only Nevada, Florida, Delaware, Maryland, Georgia and Arizona.
Oregon had 3 Metropolitan Areas in the top 50 for fraud reports with Albany OR coming in at number 42, Eugene, OR at number 49 and the Portland-Vancouver-Hillsboro area at number 50 per 100k population.
Florida, by contrast, accounted for 16 of the top 50 metropolitan areas for fraud reports including 4 of the top 6 per 100k population.
Fairing a little better, Oregon had only the 31st highest number of reports of identity theft per 100k population and did not place any metropolitan areas in the top 50 for identity theft reports.
“Imposter Scams” were the largest reported complaint in Oregon accounting for 27% of the total number of complaints followed by “Identity Theft at 12%.” Reports regarding “Telephone and Mobile Services,” “Prizes, Sweepstakes and Lotteries,” and “Online Shopping and Negative Reviews” rounded out Oregon’s top 5 report categories, each coming in at 6-7%.
“Identity Theft” and “Imposter Scams” also led the list of complaints nationally, each accounting for just over 20% of all reports, significantly ahead of the third highest reported complaint, “Telephone and Mobile Services,” at just under 6%.
The Data Book contains a wealth of fascinating information going back over three years which allows practitioners to get a sense of changes in national trends affecting consumers. For example, while “Debt Collection” reports accounted for over 21% of all reports in 2017 and was the top reported issue for that year, they accounted for less than 5% of all reports in 2019. “Identity Theft,” by contrast, has risen from under 13% in 2017 to over 20% of all reports in 2019.