SCANNER LAW UPDATE

The Scanner Law Still Exists!

What’s the main difference in the new scanner law and the old scanner law?

• How the price is advertised.  Sellers can now display the price in the store at the place where the item is located.  Individually marked items are no longer required.

The new law is called the Shopping Reform and Modernization Act.  (The old law was called the Pricing and Advertising of Consumer Items Act.)  Both of the laws are commonly referred to as the “SCANNER LAW”.

 The Scanner Law Hinges on the Price Displayed.

The price of the item has to be displayed at the place of the sale, except as to:a) Items sold by weight or volume which are not in a package or container;
b) items sold in a coin-operated vending machine;
c) prepared food intended for immediate consumption;
d) items purchased by mail or through a catalog, or which are not otherwise visible for inspection, if the price of the item is on the consumer’s written order or the bill/invoice;
e) unpackaged food items;
f) items which have a total weight of not more than 3 ounces, a total volume of not more than 3 cubic inches, and a total price of not more than 30 cents;
g) live plants;
h) live animals;
i) motor vehicles;
j) motor vehicle parts;
k) packages of 20 or fewer cigarettes;
l) greeting cards sold individually which have a readable coded price on the back of the card;
m) merchandise ordered by a consumer as a gift to be sent directly to the recipient.

If a scanner is used to charge you more than the price displayed and you have a receipt, then you get the bonus.

Once you complete your transaction notify the seller of the overcharge and request your bonus.  You do not have to do this in writing.  You do have to do this within 30 days.  Remember who you talk to and what is said.

IMPORTANT!  TAKE A PHOTOGRAPH OF THE DISPLAYED ADVERTISING.

What must the seller do?

PAY YOU WITHIN 2 DAYS!

The OVERCHARGE amount AND

The BONUS = 10 x the difference (min $1.00, max $5.00)

If the seller doesn’t pay, recover actual damages or $250.00, whichever is greater, plus reasonable attorney fees up to $300.00.

Contact me! I’ll help you get your $250 (or actual damages) and they’ll pay my fee!

Key requirements to success at getting $250:

• Price on display
• You have receipt
• You notify store within 30 days
• Store does not pay bonus within 2 days
• You have photograph of advertising/display
• You gave them (or tried to give them) your contact information

Illegal Debt Collection Practices

Abusive collection practices contribute to bankruptcies, marital instability, job loss, and invasion of privacy.  These effects end up affecting commerce.

The laws are intended to remedy that situation.  They protect consumers from abuse by requiring that non-abusive debt collection practices are used.  They apply to the collection of personal, family, and household debt.

What laws protect you?

Federal Fair Debt Collection Practices Act (“FDCPA”), 15 USC 1692

Your state’s Occupational Code:  Michigan law can be found at MCL 339.901 et. seq.

Your state’s Regulation of Collection Practices:  Michigan law can be found at MCL 445.251 et. seq.

Illegal debt collection practices: 

Illegal = False, Deceptive, Misleading, Unfair or Unconscionable

A list of prohibited practices can be found at 15 USC 1692, MCL 339.915, MCL 339.915a, and MCL 445.252.

Who can debt collectors talk to when collecting?  Only YOU!

Collectors may only speak with the you about the debt unless they are trying to find you.

** They can only confirm or correct the location information they have about you.

They can’t write you a post card or mark an envelope to look like it relates to the collection of a debt.

When can debt collectors call you?  

• Between 8:00 am and 9:00 pm
• Not at an unusual time or place
• Not at your employment if they should know your employer prohibits it

What debt collectors MUST do:  

Within five days after their initial communication with you, send you a written notice stating:

• Amount of debt
• Name of creditor
• Unless you dispute the debt within 30 days, it will be considered valid by the collector
• If you dispute the debt within 30 days, the collector will obtain verification of the debt and mail it to you
• If you provide a written request within 30 days, the collector will give you the name and address of the original creditor

If you dispute the debt or request the name and address of the original creditor, within 30 days, the collector must STOP collecting.  The collector cannot resume collection until they verify the debt and send it to you.

End all communication by writing to the collector that you refuse to pay or want them to stop.  Their only move is to terminate their efforts or sue and they are allowed to write to let you know which one.

Go after debt collectors for statutory damages!  Sue and come out ahead!

The laws MCL 339.916, § 813 Civil liability [15 USC 1692k] provide for:

• Reasonable attorney fees
• Expenses
• Actual damages
• Additional damages
• Statutory  damages

You do not have to do it alone.  Attorneys will love to help because their fee is written into the law.

Does the debt collector have a defense? 

Yes, it’s the bona fide error defense and it’s hard for them to prove in most cases!  Woo woo!

Bona fide error = no intent + procedures were in place to prevent the error

WHAT MUST YOU DO TO WIN YOUR CASE?

Write to the debt collector — “certified mail” or “return receipt requested”.  Tell them:

You dispute the debt and that they are not allowed to contact you.

OR

How and when they are allowed to communicate with you.

Keep a log.

Document the name of the person, date, time, and what was said.

Each communication can amount to money in your pocket.

Unauthorized Recordings – Eavesdropping

Perhaps you have wanted to record a phone conversation or video tape someone in your house, and wondered whether this is permitted by law. Alternatively, perhaps you have been the subject of unauthorized recordings, and want to know your rights.

THE LAW:

The federal law is codified at 18 USC 2510, et seq.  The federal law provides for a 5-year felony for recording telephone conversations except in cases in which the state allows only one person to the conversation to consent.

Michigan’s statutory law is codified at MCL 750.539c.

MCL 750.539c provides for a 2-year felony / $2,000.00 fine for willfully recording a conversation without each party’s consent — EAVESDROPPING — meaning:  NOT a party to the conversation.

Under 750.539d, it is also a crime to video record or photograph a person in a “private place”, without the person’s consent. A private place is one in which the individual has a reasonable expectation of privacy and as such, a place to which the public also has access is not a private place. Accordingly, dissemination of prohibited recordings is also a violation of law with a 5-year felony / $5,000.00 as punishment.

There are exceptions to the law for residences monitored for security purposes unless the monitoring is conducted for a lewd or lascivious purpose (MCL 750.539d(2)) and this would come with a 2 year felony / $2,000.00 fine which is aggravated for previous convictions. Police officers on duty, common carriers, public utilities, and state correctional facilities are also excepted under the law. (MCL 750.539g)

If you have been recorded and want to pursue the matter in court, the civil remedy is codified at 750.539h. You may request an injunction by a court of record prohibiting further eavesdropping, actual damages against the person who eavesdrops, and punitive damages as determined by the court or by a jury.

Michigan’s common law applies:

In Michigan, we turn attention on the participation involved in the private conversation. If you are personally participating in the conversation, then you will benefit from Michigan’s one-party consent rule. This is because participants cannot eavesdrop on their own conversations. See Sullivan v. Gray, 117 Mich. App. 476 (1982), in which the Michigan Court of Appeals ruled that the eavesdropping statute does not apply to a participant in a private conversation, because eavesdropping is defined as the overhearing or recording of “the private discourse of others.”

For further analysis, consider:  People v Stone, 463 Mich 558, 563; 621 NW2d 702, 704 (2001), Dickerson v Raphael, 222 Mich App 185, 193; 564 NW2d 85, 89 (1997) rev’d on other grounds 461 Mich 851 (1999

Getting Sued for a Debt that is “Charged Off”

“CHARGED OFF” DOES NOT MEAN THE DEBT IS NO LONGER VALID

If you have a delinquent debt, after some time it will show up on your credit report as “charged off”.  A frequent inquiry is “what does this mean” and can I still be sued for it?

“Charged off” does not mean the debt has been canceled; it is merely an accounting term useful for tax purposes.  You still owe that money but likely owe it to another party.

If you see “charged off” appearing on your credit report, this means that the creditor is letting other potential creditors of yours know that they had to write off the debt as a bad debt (rather than an asset for accounting purposes) because you did not pay your bill.  In most cases, that creditor does not end up being the one to collect the debt from you, as they will sell it to a collection agency.  Since you owe the creditor, the debt is his to assign to another party who jumps into the original creditor’s shoes and can sue you as if you originally contracted with them.

Creditors collecting on debts must do it legally.  They must follow their state and federal collection practices acts.  They must also report your history with them accurately and legally according to state and federal credit reporting acts.  Your bad history will show up for seven years.  If you finally pay the debt, then your report should be updated to include an indication that the debt has been paid, such as “charged off, paid” or “charged off, settled.”  This looks better than merely “charged off” because it looks like you paid even though it was financially very difficult.

If you have a valid defense to paying the debt, you are entitled to indicate that in an explanation that will show up next to the adverse incident on your report.  This is a step to take while settling the matter with the creditor.  In negotiations for settlement, consider including a clause in the settlement agreement that the creditor will not report the debt negatively on your credit report, and as always, put everything in writing.

Guardian / Conservator – Will you need one?

Guardianship / conservatorship lies in the realm of probate law, an area of law that each one of us who intends to grow old needs to look at because we could be in a situation where a guardian and conservator is appointed and we are placed in a nursing home with no hope of discharge. This happened to someone close to me and I took over as guardian and conservator to get her out of the home, but I met with roadblock after roadblock and ultimately did not prevail.

The person I am speaking of is a 90-year-old alcoholic. Her daughter, who resided across the state, wrote a letter to the probate judge where the 90-year-old lived and told the judge of her alcoholism. The letter was not notarized or official in any form. Based on that letter along with a non-specific petition completed by a local attorney and requesting a guardian / conservator for her protection, the judge ordered temporary guardianship / conservatorship. After 90 days, the temporary guardianship / conservatorship became permanent with additional proof in the form of a letter, though again without jurat (oath) or notarization, from the elderly woman’s physician.

The elderly woman wanted to be released and to go home and so contacted me, an attorney friend. I assessed the situation, and made a plan of action and became her guardian / conservator. Next, I contacted the physician and told him of my plan to have her discharged and return home with supervision and he was supportive. Then, (and this took several months), I petitioned the court for removal of the guardianship / conservatorship and in the petition described the supervision that she would have. Without my input, the court sua sponte (on its own motion), ordered a limited guardian who went to the elderly woman and asked her about the petition and her desires. She asked the woman if she wanted an attorney and the woman advised she already had one, and the court appointed an attorney anyway. Now there were two attorneys and two guardians involved and the court ruling like in the old Wild West. The daughter did not want me involved any longer and I was spinning my wheels. My hands were tied. The woman is still in the home, years later, now with a new guardian. She will never be released because her daughter wants her in there (she doesn’t want to have to take care of her mother, herself) and the court does not want to have to deal with an alcoholic.

This is what happens. If you are a drinker, or if you aren’t’, one day your relatives or friends may request the court to have a guardian/conservator appointed for you, who may then put you in a nursing home. To you it will be like prison, from which you can never escape. For the drinker, is it better to allow them to possibly drink themselves to death, but have their freedom in the meantime, or is better have them safe in a nursing home, but feeling like they are in prison. In any event, a person should anticipate the future possibilities and protect their freedom as they age.