How the Law Treats Lawsuits by Debt Collectors and Original Creditors Differently

As I have pointed out elsewhere, people can be sued for debt by one of two different kinds of plaintiffs: “original creditors” or “debt collectors.” Broadly speaking, original creditors are the persons who originally claimed that you owed them money for some credit-based transaction. Debt collectors are other entities who either came into possession of the debt after it was delinquent or are acting (as independent contractors) for the original creditor.

Loan “servicers,” who come into possession of the debt immediately after it is incurred and administer the debt in the usual course of business, are considered “original creditors” even though the debt obviously did not originate with them.

Legal Impact of the Entity Suing You

Because original creditors have a direct, non-collection relationship with the general public, they have commercial pressures preventing them from acting too horribly during the collection process. Their collection activities risk alienating or annoying the public and thus, in the eyes of the law at least, they are held in check by the market. Therefore, the law does not provide any remedy against original creditors per se. However, this does not mean that original creditors are permitted to do anything without limits during the debt collection, just that there are no laws directed against them specifically. If they commit “outrageous” and abusive acts, or if they “defame” you by publishing false information, or obviously if they assault you or commit some other crime, you would still have your normal rights under the law.

Some states probably have specific laws directed against the collection process, too, either as part of their “merchandizing” codes or otherwise, so you should not automatically write-off the behavior of original creditors.

Against debt collectors, however, you have much more specific rights. And this goes back to the commercial realities underlying the transactions. There is no customer-based relationship between the debt collectors and the people from whom they are collecting. There only customers are either the original creditors, or none at all-they are acting independently on their own behalf and, as far as the market is concerned, are free to take any actions whatever to collect the money. This has given rise to some extreme and shocking abuses, and it led to the passage of the Fair Debt Collection Practices Act (FDCPA), among other legislation.

Because of the lack of market countermeasures to debt collectors and the legislative response, the relationship between individuals and debt collectors has become significantly regulated. The FDCPA makes “unfair” or “deceptive” collection techniques illegal in general, and it specifies a large number of particular practices as violations. But even if the action is not specifically named as illegal by the FDCPA it will still be illegal if it is unfair or deceptive. This allows lawyers and individuals fighting on behalf of people abused by debt collectors to be as creative in stopping obnoxious practices as the debt collectors are in creating and implementing them. The FDCPA provides attorneys fees to people suing debt collectors (if they win), but otherwise the remedies are fairly small, with the exception of “personal injuries,” which can include emotional distress. So that opens the door to real money a little bit.

Again I would remind the reader that remedies are not limited either to federal law (FDCPA), as some states may have better laws, or to debt-collection related laws. Reporting false information is defamation, and behaving beyond certain limits is “outrageous” enough for states to provide a remedy. And these remedies likely include punitive damages, various forms of “compensatory” damages, and other forms of relief that can be much more substantial than those provided by the FDCPA.

In conclusion, it is far more advantageous legally to be sued by a debt collector, as the law provides many more remedies against them. You are not without any remedy, however, against the actions of original creditors if they are sufficiently extreme.

Hawaii Law Briefing – Hawaii Security Breach Law and Identity Theft Notification

Identity theft is one of the fastest growing crimes committed throughout the United States. Criminals who steal personal information use the information to open credit card accounts, write bad checks, buy cars, and commit other financial crimes with other people’s identities.

Hawaii has the sixth worst record of identity theft in the nation, according to a 2007 report.

I. Hawaii’s Security Breach Law

Identity theft in Hawaii has resulted in significant losses to both businesses and consumers. This epidemic motivated the Hawaii legislature in 2006 to pass several bills whose purpose is to provide increased protection to Hawaii residents from identity theft:

Act 135: Requires businesses and government agencies that keep confidential information about consumers to notify those consumers if that information has been compromised by an unauthorized disclosure;

Act 136: Requires reasonable measures to protect against unauthorized access to personal information to be taken when disposing of records;

Act 137: Restricts businesses and government agencies from disclosing/requiring social security numbers to/from the public;

Act 138: Permits consumer who has been the victim of identity theft to place a security freeze on their credit report;

Act 139: Intentional or knowing possession without authorization of confidential personal information is a class C felony.

Together, the bills signed into law by Governor Linda Lingle as HRS Chapter 487R impose obligations on businesses in Hawaii to notify residents whenever their personal information maintained by the business has been compromised by unauthorized disclosure.

HRS Chapter 487R does not cover financial institutions subject to the Federal Interagency Guidance on Response Programs for Unauthorized Access to Consumer Information and Customer Notice, or Health plans and providers subject to HIPAA.

The underlying policy behind HRS Chapter 487R is that prompt notification will help potential victims to act against identity theft by initiating steps to monitor their credit reputation. Thus, it is critical that any business subject to HRS Chapter 487R audit the manner in which confidential personal information is maintained and have a security breach team prepared to comply with the notice obligations and effectively deal with any breach of personal information.

II. Security Breach

HRS 487R imposes obligations on the part of Hawaii businesses to notify an individual whenever the individual’s personal information that is maintained by the business has been compromised by unauthorized disclosure and to do so in a timely manner.

Under the statute, “Personal Information” consists of an individual’s first name or first initial AND last name in combination with any one or more of the following data elements, when either the name OR the data elements are not encrypted: Social Security Number, driver’s license or Hawaii Identification Number; or an account number, credit or debit card number, or password that would permit access to an individual’s financial account.

The personal information is protected if on a “record.” A “record” is any material on which written, drawn, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics. Thus, a “record” can be in digital form or on a paper document, which differs significantly from other states that might cover only digital information.

The notice obligations are triggered when a “security breach” occurs. A “security breach” is defined as an incident of unauthorized access to AND acquisition of unencrypted or unredacted records of data containing personal information, where illegal use of the personal information has occurred, OR is reasonably likely to occur; AND that creates a risk of harm to a person. As the definition indicates many times it is difficult to determine whether information has been “acquired” or to the extent that a “risk of harm” exists.

Several states, including Alabama, Connecticut, Delaware, and Florida have devised a risk of harm exception. Such exception generally relieves the business from the notice obligation requirement after consultation with law enforcement. Since Hawaii law has no such exception most incidents of unencrypted/unredacted theft or loss of records containing personal information should carry the presumption that illegal use is likely to occur and a risk of harm. In addition, even if a statutory obligation does not arise other legal obligations may exist with respect to the theft or loss.

III. Notification Obligations

To the extent a security breach has occurred, and personal information has been compromised, the business must satisfy the notification obligations imposed by HRS Chapter 487R. Form notices are made part of this article for educational purposes only. The notice obligations must be satisfied without “unreasonable delay.” The only exception would be if a law enforcement agency informs the business in writing that notification may impede a criminal investigation or jeopardize national security. Once it has been determined that the notice will no longer impede the investigation, the notice must be promptly provided.

Under HRS Chapter 487R, the business must notify the resident (and the Office of Consumer Protection/credit reporting agencies where notice has been provided to 1,000 persons).
The notice must be given to the last available address. The notice may be sent to the resident’s email address only if the person has “opted in” to receive notices in that manner. Direct telephonic notice may be given under the statute, but generally is not the recommended way to notify the resident given the potential legal risk with such form of communication.

Under the statute, “substitute notice” may be provided where the costs to provide if the business can demonstrate that the cost of providing notice would exceed $100,000 or that the affected class of subject persons to be notified exceeds two hundred thousand, or if the business does not have sufficient contact information or is unable to identify particular affected persons.

Substitute notice shall consist of emailing the person when the email address is known, the conspicuous posting of a notice on the website maintained by the business, and notification of the security breach to major statewide media.

IV. Penalties

Statutory penalties can be significant. However, government agencies are exempt from statutory penalties under HRS ยง 487R-3. Under the law, businesses can be fined not more than $2,500 for each violation. Such penalty can add up quickly where hundreds or even thousands of Hawaii residents are not informed that their personal information has been compromised.

In addition, a court may impose an injunction on the business and the business may be liable for actual damages and attorneys’ fees.

V. Final Word

Hawaii and other states have taken significant steps to combat the growing epidemic of identity theft. It is important that both Hawaii businesses and employers, and consumers take reasonable steps to protect their interests and reputations.

For Hawaii employers and businesses:

o Enter into agreements imposing obligations on third-party companies to handle sensitive and personal information of your employees and customers in a reasonable manner and to report security breaches immediately;

o Ensure reasonable administrative, physical, and technical safeguards are placed over the personal information handled both the third-party company and internally;

o Periodically have the IT department conduct a risk analysis over electronically-stored information and computer network systems of the company;

o Have IT draft and periodically review comprehensive security procedures to limit vulnerability of the company’s systems and a plan of action;

o Train and retrain employees on privacy policies;

o Ensure company employees collect only the minimum amount of information necessary to accomplish the business purpose.

For consumers:

o Ask your employer, doctor, bank, etc., what steps are taken to protect against misappropriation of private information;

o Treat your mail and trash carefully; use cross cut shredders;

o Use locked mailboxes;

o Keep private information kept in your home hidden and secure;

o Don’t give out private information over the phone;

o Use care when using your computer; create strong passwords;

o Use common sense and stay alert (for example, write to your creditor as soon as you believe you have not timely received a billing statement);

o File a police report and obtain the police report number when you learn that your personal information has been compromised and close accounts, e.g., credit card, bank accounts, etc.;

o Follow up with law enforcement in writing and maintain a file; dispute bad checks written directly with merchants;

o Place a fraud alert/freeze on your credit files (Equifax, Experian or Transunion);

o Periodically obtain your credit report and look it over carefully; note inquiries from companies you did not contact, accounts you did not open, debts you cannot explain and report such information immediately to law enforcement.

SAMPLE LETTER 1

Data Acquired: Account Number, Credit Card or Debit Number, Access Code or Password that would permit access to Individual’s Financial Account

Dear

We are writing to you because of a recent security incident at [name of organization].
[Describe what happened in general terms, what type of personal information was involved, and what you are doing in response, including acts to protect further unauthorized access.]

To protect yourself from the possibility of identity theft, we recommend that you immediately contact [credit card or financial account issuer] at [phone number] and tell them that your account may have been compromised. Continue to monitor your account statements.

If you want to open a new account, ask [name of account insurer] to give you a PIN or password. This will help control access to the account.

To further protect yourself, we recommend that you review your credit reports at least every three months for at least the next year. Just call any one of the three credit reporting agencies at a number below. Ask for instructions on how to get a free copy of your credit report from each.

Experian Equifax TransUnion
888-397-3742 888-766-0008 800-680-7289

For more information on identity theft, we suggest that you visit the Web site of the Hawai’i Department of Commerce and Consumer Affairs at ______________ [or the Federal Trade Commission at ___________________]. If there is anything [name of your organization] can do to assist you, please call [toll-free (if phone number].

[Closing]

SAMPLE LETTER 2

Data Acquired: Driver’s License or Hawai’i Identification Card Number

Dear

We are writing to you because of a recent security incident at [name qt. organization].
[Describe what happened in general terms, what kind of personal information was involved, and what you are doing in response, including acts to protect further unauthorized access.]

Since your Driver’s License [or Hawai’i Identification Card] number was involved, we recommend that you immediately contact your local DMV office to report the theft. Ask them to put a fraud alert on your license.

To further protect yourself, we recommend that you place a fraud alert on your credit files. A fraud alert lets creditors know to contact you before opening new accounts. Just call any one of the three credit reporting agencies at a number below. This will let you automatically place fraud alerts with all of the agencies. You will then receive letters from ail of them, with instructions on how to get a free copy of your credit report from each.

Experian Equifax Trans-Union
888-397-3742 888-766-0008 800-680-7289

When you receive your credit reports, look them over carefully. Look for accounts you did not open. Look for inquiries from creditors that you did not initiate and look for personal information, such as home address and Social Security number, that is not accurate. If you see anything you do not understand, call the credit reporting agency at the telephone number on the report.

If you do find suspicious activity on your credit reports, call local law enforcement and file a report of identity theft. [Or, if appropriate, give contact number for law enforcement agency investigating the incident for you.] Get a copy of the police report. You may need to give copies to creditors to clear up your records.

Even if you do not find any signs of fraud on your reports, we recommend that you check your credit reports at least every three months for at least the next year. Just call one of the numbers above to order your reports and keep the fraud alert in place.

For more information on identity theft, we suggest that you visit the Web site of the Hawai’i Department of Commerce and Consumer Affairs at _________________ [or the Federal Trade Commission at __________________]. If there is anything [name of your organization] can do to assist you, please call [toll free (if possible) phone number].

[Closing]

SAMPLE LETTER 3

Data Acquired: Social Security Number

Dear

We are writing to you because of a recent security incident at [name of organization]. [Describe what happened in general terms, what kind of personal information was involved, and what you are doing in response, including acts to protect further unauthorized access.]

To protect yourself from the possibility of identity theft, we recommend that you place a fraud alert on your credit files. A fraud alert lets creditors know to contact you before opening new accounts. Just call any one of the three credit reporting agencies at a number below. This will let you automatically place fraud alerts with all of the agencies. You will then receive letters from all of them, with instructions on how to get a free copy of your credit report from each.

Experian Equifax TransUnion
888-397-3742 888-766-0008 800-680-7289

When you receive your credit reports, look them over carefully. Look for accounts you did not open. Look for inquiries from creditors that you did not initiate and look for personal information, such as home address and Social Security number, that is not accurate. If you see anything you do not understand, call the credit reporting agency at the telephone number on the report.

If you do find suspicious activity on your credit reports, call local law enforcement and file a police report of identity theft. [Or, if appropriate, give contact number fur law enforcement agency investigating the incident, for you.] Get a copy of the police report. You may need to give copies of the police report to creditors to clear up your records.

Even if you do not find any signs of fraud on your reports, we recommend that you check your credit reports at least every three months for at least the next year. Just call one of the numbers above to order your reports and keep the fraud alert in place.

For more information on identity theft, we suggest that you visit the Web site of the Hawai’i Department of Commerce and Consumer Affairs at ____________ [or the Federal Trade Commission at ______________]. If there is anything [name of your organization] can do to assist you, please call [toll-free (if possible) phone number].

[Closing]

Attorneys – Legal Information On Filing A Lawsuit

The constitution was put in place to protect your rights as a human being, occasionally people are treated wrongfully and need to protect their own rights. You do this by filing a lawsuit against those who have wronged you. Filing a lawsuit has many steps to take to accomplish what you want so knowing those steps is the best way to approach your case.

The very first step in filing a lawsuit is filing the original complaint and the issuing of a summons. These two things will outline what it is that has happened to you, who it is you are filing the lawsuit against, and also what you are wishing to receive from the court system as a sort of relief or payment for your grief. After these two things are filed and issued the clerk of courts then informs the person that is being issued the lawsuit of the suit. After informed the defendant is informed of this they will give their answer to the summons which will most likely be an acceptance of the lawsuit or a countersuit where they will claim that the matter was actually caused by the prosecution.

After the defendant has filed their answer with the courts the case is officially opened and the discovery process begins. The discovery process is when both sides will begin to gather evidence to back up their side of the matter. This evidence must be registered and exchanged so that both sides are protected in a lawful way and may not be ambushed by hidden evidence or a secret withheld witness.

At this point something called a pretrial conference may be held with the judge that will be presiding over the lawsuit. The pretrial conference is set in place to minimize delays in the courts and is usually set around a week before the trial actually starts. The pretrial conference is also used so that a settlement may be negotiated if that is what both the prosecution and the defense want.

After all these different steps have happened the trial is able to begin. Witnesses are able to be questioned from both the prosecution and the defense. And the evidence is presented from both sides so that the proper outcome may be decided. The judge will then give the jury instructions on how to deliberate on the matter. The jury will then decide and the case will either reach what is called a verdict or a deadlock.

Content Marketing and Web Analytics: The Yin and Yang of Any Successful Law Firm Marketing Campaign

Good content has always been one of the best ways for a lawyer to establish and maintain a professional reputation. In the hands of potential clients, good content demonstrates your understanding of the law and your ability to do what you claim to do.

Let’s say you write an excellent article on the recently signed patent reform act.

Prior to the Internet, your options for distribution of that article would be limited. You could submit it to print publishers who could decide whether or not to publish it and how to edit it. By the time it appeared on a client’s desk, it might be three months out of date.

In addition, you could snail mail a copy of your article with a cover letter directly to your list of clients, potential clients and referral sources. You could include it in the firm’s print newsletter. You could mail it to reporters covering the patent law beat and hope that they give you a call next time they are writing a story on that topic.

And that was about it. You really had no way of knowing what happened to that hard copy – if the publication was read or if the envelope or newsletter was even opened.

Today, thanks to the Internet, the options for distributing a well-written and informative article (and all kinds of content) to a wide range of interested parties are vastly expanded. So, too, are the options for finding out if the article was opened, was read and prompted further action on the part of the reader.

In the Internet age, online content marketing is the best way for lawyers and law firms to establish their reputations and attract new business. And web traffic analysis is the best way for lawyers and law firms to measure the success of a content marketing campaign and move forward based on that information. Content marketing and web analytics are inseparable parts of the same strategic process.

Online content marketing for law firms

Online content marketing involves publishing content (like the article on patent law) on your law firm’s website (including mobile website version), client extranet sites or blogs. It involves the e-mailing of your article (or newsletter) to clients, potential clients, referral sources and media sources.

An integrated online marketing program is an essential part of a law firm’s marketing program. Content marketing involves distribution of your content using popular social media sites (like LinkedIn, Facebook, Twitter and YouTube) as well as successful content syndication sites (like JD Supra, LegalOnRamp and Scribd).

Each time your keyword-rich patent law article is published on one of these sites, it is indexed by Google and other search engines – enhancing results for searches on terms like your name, your law firm’s name, your geographic area and the relevant subject area.

The term ‘content’ applies to almost any kind of material your firm is publishing. It applies to documents like press releases, experience descriptions, attorney biographies (profiles), client alerts, blog post, white papers, email campaigns and e-books on legal subjects.

Content also includes non-written files, like an online ad campaign, courtroom graphics, a PowerPoint deck, or photos of an open house or employee charity event. It includes online surveys along with survey results. And it definitely includes audio or video recordings of a presentation, a seminar or a webinar.

All types of reputation-demonstrating content can be posted not only on your own website, but also to a wide range of (mostly free) social media and content syndication sites. Once posted, this informative content is available 24/7 and around the world.

Web analytics for law firms

Not only does the Internet facilitate the wide distribution of content,”it also allows lawyers and law firms to closely track distribution – to know how many visitors click on the content; how much time they spend reading, listening or viewing the content; and where (your website, search or some other site) they found the content.

Web analytics is a process for collecting visitor or consumer data, analyzing those data and generating reports on the overall performance of these different channels. It extends well beyond your website into virtually every online channel your law firm might be using.

In the early days, web analytics programs focused on the simple measurement of activity on a law firm’s web site. Today, a good law firm website still contains useful information about the firm and its services, but the site functions more like an interactive hub to which all of the firm’s online content distribution efforts are tied.

In addition, most social media sites have their own built-in analytics programs that can be accessed for more details about activity on your accounts on those sites.

The popular Google Analytics program is free and yields information about site visitors, including number of visitors (unique, new and repeat), page views, repeat rate, visit length, page view length, page view per visit, bounce rate (those who leave quickly from a given page), entry pages (where visitors enter you site), exit pages (where visitors leave your site) and referral sources (direct traffic, search engines and other referral sites).

Among other things, Google Analytics can chart data over time, compare data month-by-month or year-by-year, and internally compare different sets of results.

Other commercial web analytics programs allow the site administrator to ‘dig deeper’ into the data. Most analytics programs will record detailed information at the user level, allowing administrators to track the number of times a given user came to the site, which pages he or she viewed and, in some cases, the location from which that user is connecting.

At Tenrec, we combine basic Google Analytics with a program called Urchin (essentially, Google’s commercial analytics product) to obtain different levels of results for our clients. There are many programs out there. The one you select should be determined by how you plan to use the results.

It is important to remember that no performance metric is inherently bad or good. A limited number of the right kind of people visiting your content and reaching out to your firm is a better result than hundreds of visitors who take no action.

Strategic content marketing and web analytics for law firms

Web analytics programs are capable of generating a vast amount of information. There are far too many metrics for users to process and interpret. Measurement tools are only useful when there is something specific to measure.

The challenge is not to get more data, which can needlessly complicate your decision-making, but to get better data. Be strategic. What is the purpose of this online content campaign (within the context of our business goals), and which select measurements will indicate progress towards achieving this goal?

Let’s go back to that article on patent reform. You post it on your website. You reference it in your blog. You e-mail it to clients, potential clients, referral sources and media sources. You post it (with links back to your site) on a variety of social media sites and content syndication sites.

On your website, analytics will let you know who visited the page and how they got there. In addition, you will discover if they stayed a while, read the article and downloaded a copy.

If no one comes or if visitors take a quick look and ‘bounce,’ you know that there is something wrong with the content. The subject is not newsworthy. The headline or keywords need work. The article is too long or too short. It is too dense and needs shorter lines and subheads, to encourage skimming. It is too casual or too filled with legal jargon. In other words, it needs work.

An e-mail analytics program will let you know who opens the e-mail and clicks on the link. Other analytics programs will indicate how your article fares in the blogosphere or is shared or re-tweeted on social media and content syndication sites.

The information generated by web analytics is a valuable tool to help lawyers and law firms plan — and continuously improve — their content and their online content distribution campaigns.

Aim of Legal Directories and Legal Information Providers

There are certain problematic occasions when you need an attorney and comprehensive legal assistance. It is essential to take legal decisions seriously otherwise it could lead to severe consequences and even jail also. Whether you need a bail bond agent or an immigration attorney for your favor in court that can defend you. Therefore, it is always good to seek them for instant help. You can also search them online through online legal directories. Most of the people find attorney as and when needed through the online search directories for utmost convenience. It is the simplest method to search and locate a lawyer in your region through these legal resources.

In fact, these legal resources are the pure repository of the complete profiles of the attorneys, their experience, office address and their area of expertise. These resources also provide vital set of legal information to the public in order to make them aware about the legal terminologies. These directories itself serves as a catalog and provides enough information regarding, immigration law, bankruptcy law, divorce law, real estate law, intellectual property law, business law, tax law and other legal documents and forms. Even you can expect emancipation forms, guardianship forms, marriage forms, power of attorney forms (including, but not limited to, power of attorney durable, power of attorney – health care, limited power of attorney, power of attorney – childcare, power of attorney – revocation, and all types legal forms), name change forms, citizenship forms, passport forms, passport application, visa forms, federal tax forms and much more from these online legal resources.

The primary advantage is that you can find the best attorney for your DWI or any other legal difficulty, through online resources. In fact, you can find the renowned bail bond agent and bail Bond Company easily with the help of these websites. You can locate them and personally visit them to discuss criminal record (if any), history of showing up for past court appearances, and any other concerns. You can discuss the complete process and initiate it consequently. Moreover, you can access a list of the County jail locations and access to the County Jail Lockup system for your convenience.

Finding an attorney is supposed to be the common way that people adopt these days. It is not only an easy and simple way, but also the fastest means of getting legal information & assistance. Online law firm information providers or directories also offer free legal forms, guide for lawyers, the latest news and information that can be accessed free of cost. Anybody can access these directories for their personal reasons; however one thing must be noted that these legal directories cannot provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, defenses, selection of forms or strategies. The very aim of these directories is to modernize legal technology and develop technologies that facilitate internet marketing for legal professionals.