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CONSUMER SCAMS Consumer & Commercial Law Section Program CONSUMER SCAMS Consumer & Commercial Law Section Program Esther Chavez Assistant Attorney General Consumer Protection & Public Health Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711 Friday, June 11, 2010 2:30 p.m. – 3:15 p.m. ESTHER CHAVEZ Assistant Attorney General Consumer Protection & Public Health Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711 Esther Chavez is an Assistant Attorney General and Deputy Chief in the Consumer Protection and Public Health Division of the Office of Texas Attorney General Greg Abbott. Ms. Chavez’ cases on behalf of the Division encompass a broad range of consumer protection concerns. Ms. Chavez’ professional activities include current service on the Texas State Bar’s Consumer and Commercial Law Section council. Previously she has served as chair of the Texas State Bar’s Hispanic Concerns Section and as Vice Chair of its Legal Services to the Poor in Civil Matters Committee. Ms. Chavez is a frequent speaker on consumer protection topics at continuing legal education programs and in the last several years has been a speaker at seminars including the National Association of Attorneys General Consumer Protection Conference, the State Bar’s Advanced Consumer & Commercial Law Course, the University of Texas’ Telecom, Broadband and Wireless Conference, the American Law Institute’s Direct and Interactive Marketing Law Seminar, the Federal Trade Commission’s Internet Enforcement Training, the Texas State Bar’s Advanced Consumer Law Course, the University of Houston’s Computer & Information Law Institute and the University of Texas’ Elder Law and Intermediate Estate Planning Conference. Ms. Chavez received her undergraduate and legal education at the University of Texas at Austin and the University of Texas School of Law. CONSUMER ENFORCEMENT IN ECONOMIC HARD TIMES: BIZ OPPS, DEBT SETTLEMENT, FORECLOSURE RESCUE & THE SCAM DU JOUR ESTHER CHAVEZ Assistant Attorney General1 Consumer Protection & Public Health Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711 State Bar of Texas ADVANCED CONSUMER AND COMMERCIAL LAW COURSE August 13-14, 2009 Houston CHAPTER 21 1The opinions expressed herein are the opinions of the speaker and do not represent the opinions of the Office of the Attorney General. Consumer Enforcement in Economic Hard Times: Biz Opps, Debt Settlement, Foreclosure Rescue & The Scam Du Jour Chapter 21 TABLE OF CONTENTS I. INTRODUCTION................................................................................................................................................... 1 II. BUSINESS OPPORTUNITIES AND WORK AT HOME SCHEMES................................................................. 1 A. Regulation of Business Opportunities............................................................................................................. 1 B. Operation “Short Change” Targeting Deceptive Biz Opps............................................................................. 2 III. DEBT SETTLEMENT............................................................................................................................................ 3 A. Regulation of Debt Settlement Services.......................................................................................................... 3 B. Operation “Short Change” and Debt Settlement Providers............................................................................. 4 IV. FORECLOSURE RESCUE .................................................................................................................................... 5 A. Regulation of Foreclosure Rescue Services .................................................................................................... 5 B. State Federal Cooperation ............................................................................................................................... 6 C. Operation “Loan Lies.” ................................................................................................................................... 6 D. Additional Texas Actions............................................................................................................................... 7 E. An Ethics Note Regarding Legal Services to Distressed Homeowners .......................................................... 8 V. NOMINEES FOR THE SCAM DU JOUR............................................................................................................. 8 A. Flu Treatment Scams....................................................................................................................................... 8 B. Opportunity Scams Targeting Churches. ........................................................................................................ 8 C. “Robo Calls” and Auto Warranty Scams. ....................................................................................................... 8 D. Charity Fraud................................................................................................................................................... 8 E. Check Scams Targeting Attorneys. ................................................................................................................. 9 APPENDIX A............................................................................................................................................................... 11 i Consumer Enforcement in Economic Hard Times: Biz Opps, Debt Settlement, Foreclosure Rescue & The Scam Du Jour Chapter 21 CONSUMER ENFORCEMENT IN The goal of federal and state laws generally is to ECONOMIC HARD TIMES: BIZ prevent misrepresentations in the sale of business opportunities and to ensure that purchasers are OPPS, DEBT SETTLEMENT, provided with all material information needed to make FORECLOSURE RESCUE & THE their investment decisions. SCAM DU JOUR In Texas, the Texas Business Opportunity Act, TEX. BUS & COMM CODE ANN. §51.003 (Vernon 2002 I. INTRODUCTION & Supp. 2008) defines a “business opportunity” as the The downturn in the U.S. economy has placed sale or lease for an initial consideration of more than $ many American consumers in financial distress leaving 500 of products, equipment, supplies, or services that them extremely vulnerable to deceptive practices and will be used by or for the purchaser to begin a business outright scams offering promises of relief. In the face in which the seller represents that: of a national unemployment rate reported in June, 2009 at 9.4 percent, consumers looking for ways to replace (1) the purchaser will earn or is likely to earn a profit or at least supplement their incomes have become in excess of the initial consideration paid by the targets for unscrupulous operators peddling business purchaser; and opportunities and work at home schemes. Consumers behind in payments to their credit providers turn to (2) the seller will: debt settlement companies which too often, promise Provide locations or assist the purchaser in finding more than they actually deliver. Similarly, in the face locations for the use operation of the products, of a national foreclosure rate of over 12 percent, equipment, supplies, or services on premises that are consumers-desperate for a way to save their homes-are not owned or leased by the purchaser or seller; vulnerable to foreclosure rescue scammers who collect Provide a sales, production, or marketing significant upfront fees from consumers and make program; or illusory promises that they can stop the foreclosure. Buy back or is likely to buy back products, Thus, as reported below, these types of supplies, or equipment purchased or a product made, opportunistic deceptive practices have become the produced, fabricated, grown, or bred by the purchaser subject of heightened state and federal enforcement using in whole or in part the product, supplies, efforts. equipment, or services that the seller initially sold or leased or offered for sale or lease to the purchaser. II. BUSINESS OPPORTUNITIES AND WORK Sellers of business opportunities must register AT HOME SCHEMES with the Texas Secretary of State and file a disclosure A. Regulation of Business Opportunities statement in a statutorily prescribed format together Generally, a business opportunity or “biz opp” with a list of those who will be selling the business involves the sale or lease of any product, service or opportunity before offering the opportunity for sale. equipment that will enable the purchaser-lessee to Some sellers must file bonds, establish trust accounts begin a business. The seller or lessor of a business or obtain irrevocable letters of credit in favor of the opportunity usually represents that it will secure or State of Texas. The filed disclosure statement must assist the buyer in various ways including, for be provided to a purchaser at least ten business days example, finding a suitable location or providing the before the earlier of the date the purchaser signs a product to the purchaser-licensee. business opportunity contract or the date the seller Business opportunity sales are regulated by the receives any consideration for the sale. Violations of Federal Trade Commission (FTC) under the Franchise the TBOA are false, misleading or deceptive acts or Rule, 16 C.F.R. Parts 436 and 437 and by many states, practices under the Texas Deceptive Trade Practices- including Texas. In 2008, the FTC amended its Rule Consumer Protection Act, TEX. BUS. & COM. CODE in order to separate the requirements
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