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Chad Echols Featured in Collector Magazine

Chad Echols’ experience volunteering with the ACA’s Attorney State Chair Program – a new and improved version of the Map State Compliance Chair Program – helps build his career and members’ businesses.

When the phone rings at Chad Echols’ South Carolina-based law firm, it may be a call from a client or a fellow ACA International member seeking his input on a legal question.

For more than a decade, Echols served as a Members Attorney Program State Chair for South Carolina and currently volunteers with the new and improved version of this program, now known as the Attorney State Chair Program.

Rebranded in 2016, the Attorney State Chair Program provides ACA units and their members with access to an attorney licensed to practice law in their state. These attorneys have volunteered to take calls and make themselves available as legal resources and referral attorneys, as their schedules permit.

The Attorney State Chair Program was created based on recommended changes to the MAP State Compliance Chair Program to ensure the chairpersons are an integral part of the unit.

Echols said he learns a lot talking to members about their legal questions. “It’s a very enjoyable part of my role in assisting the industry,” he said.

Echols also serves as the South Carolina State Legislative Chair and, before forming The Echols Firm, LLC, he worked as an attorney at Hamilton, Martens & Ballou, LLC. He started his career in the collection industry as vice president and general counsel at ACA member company Williams & Fudge, Inc., where he remains outside general counsel.

He regularly connects with members in South Carolina and others from around the country with licenses to collect in the state.

They often have questions about regulatory issues and litigation compliance. Thanks to his career experience and longtime involvement with ACA, Echols is able to provide insight into these issues that members can use to implement changes at their companies.

“Hopefully ACA members can get context to a compliance problem or litigation trend that is out there,” Echols said. “Letter litigation is a good example. An ACA member may have done something with a letter a few years ago that was compliant at that time, but has not changed or updated the letter because a new or developing issue has not been litigated against them. When a problem crops up, I advise the agency to look at other things that are trending, so they can bring policies and processes up to date.”

Echols also helps members understand current litigation trends. “I think for may agencies they are standing in the woods where they can smell the smoke, but they don’t know where the fire is coming from,” he said. “As a volunteer and attorney with experience in multiple cases and litigation, you can see those trends and help members understand why certain cases are progressing or assist the agency so they can clarify a specific legal problem or national trend.”

The program chairs serve a crucial role as a liaison between ACA and the affiliated state and regional unit members, helping to strengthen relationships and partnerships between attorneys and their member clients.

“I think one way we assist is to help unit members gauge how big a problem they’re facing actually is, so they can decide the proper next steps,” Echols said. “Agencies with a small litigation portfolio view new litigation as a very big problem. Sometimes it is a big problem. Other times, my experience can provide them confidence the matter is simply a nuisance.”

Echols said volunteering with the Attorney State Chair Program helps him stay connected with fellow members and the industry.

“The collection industry is big business, but it’s a ‘small industry’ because people know each other,” he said. “I have developed friendships and business relationships by being able to volunteer. I enjoy the camaraderie of ACA and working with other lawyers across the country who are assisting members. Being able to understand what’s going on in the national landscape helps everyone in the local unit.”

By Katy Zillmer for the August 2017 Edition of Collector Magazine

Jenna M. Williams Joins The Echols Firm, LLC

jenna.williams@theecholsfirm.com

803.329.8970

Jenna was born and raised in Tallahassee, Florida. After high school, she attended the University of Florida where she earned her Bachelor of Science degree in Business Administration and a minor in Mass Communications. During her time at the University of Florida, Jenna was a member of the UF student chapter of the American Mock Trial Association, a member of the Phi Alpha Delta Mock Trial Team, and a member of Kappa Delta sorority.

After college, Jenna relocated to Columbia, South Carolina and received her J.D. at the University of South Carolina School of Law in 2012.

Jenna practiced family law in Charlotte, North Carolina for five years prior to joining The Echols Firm, LLC.

Community Involvement:

North Carolina State Bar 2012
South Carolina State Bar 2013
North Carolina Bar Association (Family Law Section)
Mecklenburg County Bar Association (Family Law Section and Young Lawyers Division)
Guardian ad litem, Court Appointed Special Advocates
Children’s Advocacy Law Society

Memorandum of Decision and Order Regarding Contact Limits in Massachusetts

Watkins v. Glenn Associates, Inc., No. 15-cv-3302 (Mass. Sup. Ct. June 10, 2016).

In this case, the plaintiff sought relief from the defendant’s alleged violations of the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 7.04 and the Massachusetts Consumer Protection Act, G.L. c. 93A, §2. The Code states in part that it is an “unfair and deceptive act or practice for a creditor to…initiat[e] a communication with any debtor via telephone…in excess of two such communications in each seven-day period…” 940 Code Mass. Regs. § 7.04(1)(f). The defendant called the plaintiff’s cell phone on December 17th, twice on December 22nd, and twice on December 23rd. The defendant spoke with the consumer on December 17th, but reached his voicemail on December 22nd and December 23rd. The defendant did not leave any voicemails for the plaintiff. Watkins v. Glenn Associates, Inc., No. 15-cv-3302 (Mass. Sup. Ct. June 10, 2016).

The question for the Court in this case was “whether the telephone calls in question constituted ‘initiating a communication’ under the state debt collection regulations.” The Court determined that, based upon the language of the statute and the Attorney General’s guidance, because the defendant was able to leave a message for the debtor, such contact constituted a communication.

The Court placed much of its focus on the Attorney General’s Guidance that “unsuccessful attempts by a creditor…may not constitute initiation of communication if the creditor is truly unable…to leave a message for the debtor.” Despite the fact that the defendant did not leave a voicemail for the plaintiff, the Court reasoned that because the defendant had a choice not to leave a voicemail, this action was a communication.

Second Circuit Holds Failure to Disclose Fees and Interest Accrual on Debt Violates the FDCPA

Avila v. Riexinger & Associates, LLC, 817 F.3d 72 (2nd Cir. 2016).

According to a recent Second Circuit opinion (in line with a past Seventh Circuit opinion), the FDCPA requires debt collectors to disclose to consumers if account balances will increase due to interest or other fees.

In Avila v. Riexinger & Associates, LLC, 817 F.3d 72 (2nd Cir. 2016), the Court found collection notices sent to consumers, without expressly stating the balances were subject to increase, violate the FDCPA. In Avila, consumers were sent collection notices with the amount due identified as “Current Balance.” Relying on the FDCPA’s purpose of protecting consumers, the Court held this was a deceptive practice because, “[a] reasonable consumer could read the notice and be misled into believing that she could pay her debt in full by paying the amount listed on the notice.  In fact, however, if interest is accruing daily, or if there are undisclosed late fees, a consumer who pays the ‘current balance’ stated on the notice will not know if the debt is paid in full.” Id. at 76.

The holding is in accord with the Seventh Circuit’s opinion in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark, LLC, 214 F.3d 872 (7th Cir. 2000). Although there is not consensus across all Federal Circuits on this issue, we recommend collectors use language similar to the safe-harbor provision outlined in Miller in any collection notice sent for an account where the balance is subject to increase. Contact us if you need additional information on the safe harbor language outlined in Miller and buttressed by Avila.

U.S. Supreme Court Issues Important Opinion on Article III Standing

Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).

The issue in this case revolves around whether the respondent (Robins) had standing to maintain an action in federal court against the petitioner (Spokeo) for alleged violations of the FCRA (Fair Credit Reporting Act).

The procedural history of this case consists of the District Court dismissing Robins’ complaint for lack of standing with a panel of the Ninth Circuit reversing the District Court’s ruling. Ultimately, the Supreme Court determined the Ninth Circuit’s analysis was incomplete as review of the injury-in-fact requirement requires a plaintiff to allege an injury that is both concrete and particularized. The Ninth Circuit did not address whether the injury was concrete.

In reaching its conclusion, the Supreme Court discussed Article III of the United States Constitution and indicated Article III standing serves to prevent the judicial process from being used to usurp the powers of the political branches. In order to have standing to sue, the plaintiff must meet three elements: (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff has the burden of proof of establishing these elements and, at the pleading stage, must clearly allege facts demonstrating each element.

This case hinges on whether Robins suffered an injury in fact, one of the required elements to establish standing. In order to establish an injury in fact, a plaintiff must show he/she suffered an invasion of a legally protected interest that is concrete and particularized, as well as, actual or imminent. An injury is particularized if it affects the plaintiff in a personal and individual way. A concrete injury must actually exist.

It is important to note the Court states that even for statutory violations, the plaintiff must have suffered a concrete injury. A plaintiff cannot allege a bare procedural violation and meet the Article III standing requirements. The Court provides the example of an incorrect zip code and indicates that it is difficult to imagine how the dissemination of the incorrect zip code, without more, could cause any concrete harm.

This case has the ability to heavily impact the debt collection industry. Consumer attorneys are already pleading their cases differently to account for the Court’s decision. Defense counsel are trying to see how this opinion can apply in other circumstances such as FDCPA and TCPA cases. We will continue to update clients as to how courts are interpreting Spokeo. Of note, many cases brought against the industry are purely technical. Despite being technical, this opinion will not provide clients the ability to dismiss many of the types of cases you regularly encounter. Spokeo is helpful, but the case is not a panacea.

Chad Echols’ Spring 2017 Conference Engagements

Chad continues to support the Collection Industry through various speaking engagements at conferences around the country.

Please contact Chad about speaking at an upcoming event in your area.  This spring he will present at the following conferences:

North Carolina Association of Community College Business Officials (ACCBO) Spring 2017 Conference in Pinehurst, NC
March 6th through March 8th

National Association of College and University Business Officers (NACUBO) 2017 Student Financial Services Conference in Las Vegas, NV

March 19th through March 21st

Colorado Association of Administrators of Student Loans and Account Receivables Conference 2017 (CAASLAR) in Blackhawk, CO

April 19th through April 21st

North Carolina Collectors Association 2017 Tri-State Collector’s Conference in Wilmington, NC

April 26th through April 28th

PacWest Student Financial Services Conference 2017 in La Jolla, CA

May 17th through May 19th

Chad Echols Selected as 2016-2017 ACA Attorney State Chair for South Carolina

Chad Echols is proud to support the credit and collection industry as ACA International’s selection for Attorney State Chair for the state of South Carolina. This role provides ACA Association Units and ACA members with a legal resource and referral attorney licensed to practice in South Carolina.

The 2016-2017 term marks Chad’s fifth consecutive year serving as ACA International’s South Carolina Attorney State Chair.

COHEAO Webinar with Chad Echols: “Bankruptcy Issues in Student Lending and Higher Education Receivables”

We are pleased to announce that Chad will present a webinar for the Coalition of Higher Education Assistance Organizations (“COHEAO”) on Thursday, October 13, 2016 at 2:00pm EST. COHEAO’s announcement notes the details of Chad’s presentation:

“COHEAO is pleased to announce its upcoming webinar, “Bankruptcy Issues in Student Lending and Higher Education Receivables” with Chad Echols of The Echols Firm, LLC. Set for Thursday, October 13 at 2 PM Eastern Time, this webinar will review the latest in the always evolving topic of bankruptcy in higher education collections. Don’t wait, sign up today!

Chad will provide an entertaining, expert update on legal matters and review some best practices to protect your institution.  Chad’s practice focuses on the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, the Telephone Consumer Protection Act, compliance for collection agencies and debt purchasers, business law, litigation, and commercial collections. He is a member of the South Carolina Bar Association.”

Should you like to attend the webinar, please register here.

Chad Echols’ Spring 2016 Conference Presentations

Chad continues to support the Collection Industry through various speaking engagements at conferences around the country.

Please contact Chad about speaking at an upcoming event in your area.  This spring he will present at the following conferences:

Coalition of Higher Education Assistance Organizations Conference 2016 in Washington, DC

January 31st through February 3rd

South Carolina State Bursar’s Meeting at the University of South Carolina

February 18th

Colorado Association of Administrators of Student Loans and Account Receivables in Golden City, CO

April 21st through April 22nd

PacWest Student Financial Services Conference 2016 in Olympic Valley, CA

May 11th through May 13th

Collection Law Firms in the Cross-hairs of Regulations

Massachusetts Attorney General Maura Healy filed a lawsuit against Lustig, Glaser & Wilson, P.C. stemming from allegations that the law firm “repeatedly sued consumers for debts they did not owe or debts that were inaccurate,” according to a news release from the attorney general.

The lawsuit was filed less than a week before the Consumer Financial Protection Bureau and Frederick J. Hanna & Associates, P.C., et al. reached a joint settlement in a similar case after nearly two-and-a-half years of investigation.  The settlement between the CFPB and the Hanna firm marked the end of an unprecedented federal lawsuit which the CFPB filed against Hanna in the U.S. District Court for the Northern District of Georgia.

In both instances, the volume of the collection lawsuits looks to have been a major factor in attracting the attention of the regulators.  The CFPB claimed the Hanna firm violated the FDCPA and the Consumer Financial Protection Act in its process of filing consumer lawsuits using affidavits of claim from the creditors in state court debt collection proceedings.  In the Massachusetts case, the Attorney General alleges the firm, “violated the state’s consumer protection laws in pursuit of debts and its use of judicial proceedings.” The complaint includes allegations that the firm filed more than 100,000 debt collection lawsuits in Massachusetts.  Notably, the Massachusetts Attorney General is seeking injunctive relief, restitution to consumers and civil penalties from the Lustig law firm.

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