A New Barrier: the Least-Sophisticated Consumer & Language Barriers

Article by: Sasha Lemon

A majority of federal court circuits have adopted the least-sophisticated consumer standard in analyzing Fair Debt Collection Practices Act (FDCPA) claims. The least-sophisticated consumer standard is to ensure that the FDCPA protects gullible as well as shrewd consumers. Creditor Rights advocates have had to contend with this standard, which essentially lowers the burden for a consumer, for years. Although the standard provides deference to the consumer, it is still fairly objective; it merely asks whether the least sophisticated consumer would have been misled by the actions of the debt collector.

The CFPB, however, has indicated that more subjective characteristics may need to be evaluated. Specifically, the CFPB is interested in consumer populations with limited English proficiency (LEP).[1] In November of 2013, the CFPB reported that approximately 34 million Americans speak Spanish at home.[2] Approximately 10 million of those speakers speak English less than “well.”[3] This group represents the largest linguistic population with LEP in the United States. Recently, the CFPB explained “many people struggle to understand consumer financial products and services. These struggles can be compounded by language barriers, and can make some populations prime targets for exploitation.”

In response to this realization, the CFPB has created a website geared to the LEP population. Spanish speaking consumers can find answers in plain-language Spanish at consumerfinance.gov/es. Additionally, the CFPB and the FTC announced a joint roundtable entitled, “Debt Collection and the Latino Community,” on October 23, 2014.[4] The roundtable will bring together consumer advocates, industry representatives, and state and federal regulators to discuss and address the debt collection and credit reporting issues faced by the Latino community.[5]

[1] CFPB Considers Debt Collection Rules, CFPB (Nov.6, 2013), http://www.consumerfinance.gov/newsroom/cfpb-considers-debt-collection-rules/.
[2] Language Use, United States Census Bureau, http://www.census.gov/hhes/socdemo/language/
[3] See generally id.
[4] Zixta Q. Martinez, Save the Date, Long Beach, CFPB (Oct. 9, 2014), http://www.consumerfinance.gov/blog/save-the-date-long-beach/.
[5] Debt Collection & the Latino Community Roundtable, Federal Trade Commission (Oct. 9, 2014), http://www.ftc.gov/news-events/press-releases/2014/10/federal-trade-commission-consumer-financial-protection-bureau.

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Our fees are competitive and conform to industry standards. In most instances, the following fee arrangements are available:

1. Collection matters are handled on a contingency fee basis, but an hourly option is available and sometimes requested by clients who hold large balance claims. At a clients’ request, fees for collection matters can be billed on a per item flat fee basis for letters, pleadings, motions, and executions.

2. Uncontested foreclosures and related bankruptcy and eviction matters are most often billed on a flat fee basis according to the Fannie Mae guidelines. Contested matters, and counterclaims, generally require additional flat fee or hourly billing, subject to client approval;

3. Uncontested replevin cases are also handled on a flat fee basis. If the right to recover possession is opposed, the matter is converted to an hourly fee basis, upon client approval;

4. Mechanic’s lien matters are treated the same as replevin cases, unless they involve multiple properties, or otherwise relate to unusual subject matter;

5. Our firm is also pioneering the availability and use of alternative fee arrangements (“AFA’s”) for legal services that have traditionally been billed hourly. The availability of AFA’s is a product of our firm’s ambition to deliver legal services in an efficient and cost-effective manner, and help clients more effectively forecast and contain costs. AFA’s are available for an ever expanding range of matters, including litigation defense, discovery disputes, and appellate practice.