Student loan borrowers experience significant burdens beyond their loans’ repayment costs, including servicer misconduct and inefficiency, an oblique collections process, and system complexities. In response to these difficulties, Oregon recently passed legislation creating a student loan ombuds within the Oregon Division of Financial Regulation. The legislation, codified in ORS 725A.500 through 725A.530, also requires federal and private student loan servicers operating in Oregon to obtain licensure with the Division.

The ombuds’ primary responsibilities include receiving and attempting to resolve consumer complaints against servicers, monitoring and recommending changes to the student loan policy landscape, and developing a comprehensive statewide education program for student loan borrowers.

Lane Thompson was hired in June 2022 to serve as Oregon’s first student loan ombuds. Since then, she has contributed to the development of a website for student loan borrowers and an online complaint form for borrowers to submit for consideration. In addition, Thompson has spoken directly with dozens of borrowers and given numerous presentations regarding her role and Oregon’s new student loan legislation. Thompson also ran a communications campaign about the since-expired waiver for expanded borrower eligibility under the Public Service Loan Forgiveness program.

On August 24th, 2022, The Biden/Harris administration announced loan relief of up to $20,000 for eligible borrowers. This relief is blocked by federal appellate court orders, which the administration has appealed.  SCOTUS will hear arguments on the relief program in February 2023.  In response to the delay in implementation, the student loan repayment pause has been extended to June 30, 2023, or 60 days after the courts render a final decision. Once the payment pause expires, borrowers will be responsible for making loan payments, many for the first time. In addition, nearly half of all federal loans have recently been transferred to new servicers. Thompson strongly recommends that borrowers begin planning for the reinstated payments. This includes budgeting and confirming loan details with their current servicer.

Finally, the student loan industry is rife with scams. The Division recent published an alert to notify the public of their prevalence. More information regarding scams can be found on the Division’s student loan website, along with a list of borrower rights, links to resources, and responses to frequently-asked questions. The site also includes Thompson’s direct contact information.

The Oregon Court of Appeals has decided two cases impacting tenants and the Oregon Residential Landlord Tenant Act (ORLTA) in the first half of 2022; Shepard v. Ormandy, 320 Or App 521 (2022) and Thomas v. Dillon Family Ltd. P’ship II, 319 Or App 429 (2022).

 Shepard v. Ormandy, 320 Or App 521 (2022)

In Shepard, the court addressed the appropriate tenant remedy when a landlord wrongfully charges the tenant for utilities in violation of ORS 90.315(4)(b).

ORS 90.315 is a lengthy, convoluted section of the ORLTA that controls the methods through which a landlord can bill its tenants for utilities.  When a landlord is charged by a utility company and passes those charges on to the tenant, a common scenario in an apartment building without separately metered units, then the tenant’s bill must include either:  (1) a copy of the utility company’s bill or (2) include a disclaimer stating that the tenant has the right to inspect the bill if they want. ORS 90.315(4)(b)(C). “If a landlord fails to comply . . . the tenant may recover from the landlord an amount equal to one month’s periodic rent or twice the amount wrongfully charged to the tenant, whichever is greater.” ORS 90.315(4)(f).

In Shepard, the landlord billed the tenant each month, for twelve straight months, without including the utility provider’s bill or the required disclosure.[1]  At trial, the plaintiff/tenant argued, and the trial court agreed, that they were entitled to 12 months’ rent because the landlord violated the statute 12 separate times by sending 12 bills without the required disclosure.

The Court of Appeals overturned the trial court and held that the proper measure of damages was either twice the total amount wrongfully charged over the entire twelve-month period or one single months’ rent for all twelve instances of non-compliance.

The Court of Appeals reasoned that the “legislature chose language that does not direct a deciding court to award one month’s periodic rent or twice the amount wrongfully charged the tenant, whichever is greater for each and every separate noncompliant bill sent by a landlord, and the legislature would have included language to that effect had that interpretation been intended.” Shepard, at 531.

As a result, in Shephard, the tenant was required to choose between $1,920 (double the $960 wrongfully charged among over the full 12-month period) or a single months’ rent of approximately $754.  Under the trial court’s reasoning, the tenant would have been entitled to 12-months’ rent totaling $9,050.

This, of course, represents a huge difference in damages for a tenant. And this holding will massively restrict a tenant’s ability to bring a suit against a landlord who fails to comply with the statute. By restricting the possible recovery to only one instance of one-month’s rent, tenant advocate attorneys will be hard pressed to convince their clients that such a lawsuit is worth the tenant’s time. And tenant attorneys need to be aware of this decision in weighing whether such a claim is worth bringing to them or their client.

Thomas v. Dillon Family Ltd. P’ship II, 319 Or App 429 (2022)

In Thomas, the court of appeals determined that a landlord cannot raise a comparative fault defense in a habitability claim brought by a tenant.

The tenant brought a habitability complaint against the landlord based on the landlord’s failure to properly maintain the unit’s refrigerator after slipping on water leaking onto the kitchen floor and sustaining multiple injuries.  The landlord learned of the malfunctioning refrigerator the day before the tenant slipped. The day after the slip and fall, the landlord repaired the refrigerator.

In its answer to the suit, the landlord asserted a comparative-fault defense, essentially arguing that the tenant’s injuries were caused by her own negligence and not the result of a habitability defect of the property. The Court of Appeals held that the landlord cannot claim comparative fault as a defense in the context of a habitability claim by a tenant.

ORS 90.360 states that “Except as provided in this chapter, if there is a material noncompliance by the landlord . . .  with ORS 90.320 (Landlord to maintain premises in habitable condition)” the tenant may recover damages (emphasis added). The Court focused on the except as provided in this chapter language in holding “[w]e understand that plain text to provide that any limitations on the recovery of damages or injunctive relief must be found exclusively in ORS chapter 90—the ORLTA—and not outside of that chapter.” Thomas, at 434.  Since the ORLTA does not provide a landlord with a common-law, comparative fault defense, the landlord cannot claim one in defending a habitability claim brought by a tenant.

The landlord’s duty to maintain the property in a habitable condition is absolute. The ORLTA is a strict liability set of statutes. See e.g., Humbert v. Sellars, 300 Or 113 (1985); Brewer v. Erwin, 287 Or 435 (1979). If a habitability violation exists, the landlord is strictly liable for damages resulting form that violation, unless the ORLTA itself carves out an exception. A tenant need not prove that a landlord was negligent as a part of a habitability claim, only that the habitability condition existed and the landlord either knew or reasonably should have known of its existence. See, Davis v. Campbell, 144 Or App 288, 293 (1996) (holding that the legislature did not incorporate “common-law negligence principles as predicates to recovery of damages under [ORS 90.360]”).

This ruling eliminates an oft-used avenue for landlords to escape or massively limit their liability for habitability defects. No longer will tenant attorneys have to argue at a motion to dismiss or summary judgement that the tenant is at least partially, if not wholly, at fault for damages resulting from a landlord’s habitability violations. This greatly increases the ability of tenants to demand living conditions that conform to basic concepts of habitability and greatly increases tenants’ incentive and ability to demand remuneration for injuries caused by those violating landlords.

[1] Claims would be limited to twelve months’ worth of billing pursuant to the ORLTA one-year statute of limitations. ORS 12.125.

By Emily Rena-Dozier

The Oregon Supreme Court released an opinion on July 28, 2022, that established important due process protections for tenants facing eviction for nonpayment of rent. In Hickey v. Scott, 370 Or 97 (2022), Justice Nelson wrote for a unanimous Court, holding that if a landlord issues a termination notice for nonpayment that demands more rent than is factually due, the notice is invalid and any eviction proceeding based on such a notice must be dismissed. The Supreme Court reversed the Court of Appeals’ decision to the contrary, explaining that the statutes regulating tenancy terminations in the Oregon Residential Landlord Tenant act “require precise and accurate information so that the tenant does not have to guess as to the exact nature of the breach and can be prepared to defend against it. * * * A notice that fails to meet those requirements—that is, fails to provide the precise and accurate information required—fails to give tenants that notice and, as a result, renders the notice invalid.” 370 Or at 111-12.

This case arose from an eviction proceeding where a landlord issued a termination notice that failed to account for payments made by the tenants, and instead demanded payment of more than tenants owed. Despite finding that landlord’s termination notice demanded more money to cure the nonpayment than tenants in fact owed, the trial court found for landlord, on the basis that tenants did owe some amount of rent. The Court of Appeals affirmed, holding that a termination notice for nonpayment need only state an amount that landlord claimed to be due, not the amount that tenants actually owed. In reversing the decision of the Court of Appeals, the Supreme Court emphasized that, given the power imbalance between landlords and tenants, holding landlords to the strict letter of the notice requirements was necessary to provide tenants with the necessary information to respond to allegations of a breach of the rental agreement and, if necessary, defend against those allegations in court.

Because approximately 85% of all residential evictions are based on nonpayment of rent, this decision will affect thousands of Oregon tenants each year. Oregon landlords and tenants should be on notice that a termination notice that overstates the amount of rent due will result in dismissal of eviction actions.

By Hope Del Carlo:

On June 1, 2021, Oregon instituted HB 2009, its most recent moratorium against residential foreclosures during the pandemic. The law, initially set to expire earlier in 2021, was extended by Governor Brown  via Executive Order 21-30, which protects most residential borrowers from foreclosure through December 31, 2021. More information about HB2009 can be found in David Venables’s article, published on this website on June 28, 2021.

Approximately two-thirds of Oregon’s homeowners have benefited from COVID-19 protections mandated as part of the federal CARES Act, which Congress passed at the beginning of the pandemic. Borrowers with federally-backed loans (such as VA, FHA, and USDA Rural Housing loans, among others) were entitled to forbearances and other forms of relief under the statute and related loan servicing rules. Some of those borrowers may be entitled to post-forbearance COVID-19-related relief. Borrowers with questions about their CARES Act rights should contact a housing counselor or consumer lawyer for additional information about help available to them under federal statutes, rules, and related servicing guidelines.

As Oregon’s moratorium and other protective measures end, economists and others expect an uptick in mortgage defaults and foreclosures. There will be additional help for some at-risk homeowners, however, in the form of an expected $72 million from the U.S. Treasury’s Homeownership Assistance Fund (“HAF”), an aspect of the American Rescue Plan.

Oregon Housing and Community Services is creating programs to distribute these funds, which are described more fully on its website, here.

Mortgage payment and reinstatement assistance is expected, however proposed program terms must be federally approved, and may change based upon the U.S. Treasury’s response. To keep abreast of the current programs that are in development, homeowners can sign up to receive additional details from OHCS about the HAF programs, here.

In addition, you can find HUD-approved housing counselors, here.

Recently, our office has observed an increasing number of vehicle consignment sale fraud. These practices are usually prevalent in RV sales, but they also exist for cars as well. For the reasons provided below, consumers should be extra cautious when purchasing or selling vehicles on consignment.

How do consignment sales work?

Consignment sales are agreements with a dealer to sell your vehicle on your behalf. They are different from traditional sales because you don’t actually sell the vehicle to the dealer, but the dealer acts like a broker to sell the vehicle for you. When a buyer buys your vehicle, the dealer keeps a portion of the sale for commission and processes the title to be conveyed to the new buyer. This is attractive to the dealer because there is much lower risk for the dealer, and it’s also attractive to the seller because the seller can potentially get a better price for the vehicle. This practice is not illegal, but some dealers have used consignment sales to commit egregious fraud.

How do dealers commit consignment fraud?

Consignment fraud is very simple. The dealer sells the vehicle to the buyer and receives payment from the buyer. Under Oregon law, the dealer must have the physical title, or an equivalent document,  when the vehicle is made available for sale. The dealer must also pay the consignor (the seller) within 10 days of the sale of the vehicle. As you can imagine, dealers often do not receive the title from the consignor (seller) and fail to pay the seller at all. Recently, a Salem RV dealer sold over $500,000 worth of RVs, took the money and disappeared, leaving a mess for the buyers and the sellers. The sellers were never paid for the vehicles and so refused to relinquish the title to the buyers. The buyers, meanwhile, paid money for their vehicles, so they demanded their titles from the sellers.

Who has the right to the title?

Although both the seller and the buyer are victims of the dealer’s fraudulent activities, Oregon law favors the buyers over the sellers in these situations. Oregon Law states that a bona fide purchaser of goods “acquires all title which the transferor had or had power to transfer” at the time of sale.[1] The seller, by “entrusting [the vehicle] to a merchant who deals in goods of that kind gives the merchant power to transfer all rights of the entruster to a buyer in ordinary course of business.”[2] In other words, the buyer in these situations take the title free and clear. The reasoning behind this rule is that even though both parties are victims, the seller is slightly more culpable because the law confers a closer relationship between the seller and the dealer than between the buyer and the dealer.

How are these issues resolved?

For the buyer, the remedy isn’t too difficult. If they are, in fact, bona fide purchasers, they can request that the seller relinquish the title. The seller will likely not be willing to part with the title because they never received the proceeds of the sale, but if the buyer takes the action to court, the court will likely grant the title to the buyer. For the seller, the remedy is with the dealer, but that will be difficult, because the dealer has likely run off with the money or will file bankruptcy. Oregon law requires vehicle dealers to carry a bond for these kinds of situations, but the bond amount is limited to $50,000 per year, which must be split among all of the claimants in that year. In these situations, dealers usually defraud multiple victims at once, leaving the victims to take a small percentage of the $50,000 bond.

How to avoid being defrauded.

The best thing a purchasing consumer can do to prevent being defrauded in this way is to never purchase a vehicle of any kind on consignment. Sometimes the dealer may not disclose that a vehicle it is selling is on consignment, so the consumer should make sure to ask if the vehicle is on consignment. Second, if the consumer is purchasing a vehicle on consignment, demand the physical title be signed and given over before paying the dealer. If the dealer doesn’t have the physical title for a consignment sale, it is time to walk away. Likewise, for the seller, never sell your vehicle on consignment. Selling your vehicle to the dealer, trading it in, or selling it directly to a private party are all much safer options than to trust your vehicle to a consignment dealer.

 

By Young Walgenkim

[1] ORS 72.4030(1)

[2] ORS 72.4030(3)

By Kevin Mehrens

Who is a debt collector in the Ninth Circuit for the purposes of the Fair Debt Collection Practices Act (FDCPA)? Seems like one of those know-it-when-you-see-it kind of answers. The FDCPA tells us that a debt collector is: (1) any person who regularly collects or attempts to collect, directly or indirectly, debts owed or due another, or (2) any business, the “principal purpose” of which is the collection of any consumer debts. A business is a debt collector if they meet either of these two definitions. In the context of debt buyers, since they are the owners of the debt they purchase and not collecting for another, they can’t qualify as a debt collector under the first definition, only the second. (See THIS excellent article from Oregon consumer attorney Kelly Jones regarding the definition of when a business “regularly collects” a debt.) So, the question becomes: what is a debt buyer business’ “principal purpose?”

In March 2020, the Ninth Circuit, in McAdory v. M.N.S. & Associates, 952 F.3d 1089 (9th Cir. 2020), held that an entity which purchases debts and subsequently hires a third-party debt collector to actually perform the collection activities is still a debt collector under the FDCPA. The defendant in McAdory argued that they were not a debt collector but merely a “passive debt buyer” (a term not defined in the FDCPA or elsewhere). But the Ninth Circuit held that the debt purchaser’s “principal purpose” is still the collection of debts, regardless of whether it engages the consumer to collect the debt or hires another debt collector to do so. As long as the third-party is a debt collector the debt buyer is also a debt collector.

Great! So now we know that debt buyers are debt collectors for purposes of the FDCPA. But what happens when the third-party collector is the entity which violated the FDCPA? Is the debt buyer who hired the third-party responsible for such a violation?

On remand to the Oregon District Court, the plaintiff in McAdory filed a motion for summary judgement on the issue of vicarious liability arguing that the debt buyer had the right and responsibility to control the actions the collector they hired. Basically, the plaintiff argued that the third-party collector was the agent for the principal debt buyer under common law agency theories and was therefore responsible for its violations of the law. The principal debt buyer argued that they were not responsible for the actions of the agent.  The principal told the agent to obey the law but otherwise left the methods for collecting up to it and took a hands-off approach.  On June 7, 2021, the District Court held that the principal “should bear the burden of failing to monitor the activities of those it contracts to carry out its primary purpose.” To say it another way, if a debt collector hires another debt collector to collect debts on its behalf it is responsible for violations committed by the hired collector. Actual control or the right to control on the part of the principal is not required.

This ruling is consistent with both the Third and Seventh Circuits. See, Barbato v. Greystone Alliance, LLC, 916 F.3d 260 (3d Cir. 2019) (instructing the district court that, on remand, the plaintiff did not need to show that the principal debt collector exerted actual control over the third-party in order to be held vicariously liable); Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317 (7th Cir. 2016);  (“[I]t is fair and consistent with the Act to require a debt collector who is independently obliged to comply with the Act to monitor the actions of those it enlists to collect debts on its behalf.”).

Great again! Now we know that a company that purchases debts but hires a third-party collector to do the dirty work is a debt collector under the FDCPA. And now we have persuasive authority from the Oregon District Court that the debt buyer is vicariously liable for a third-party debt collector’s violation regardless of the level of control over it due to the nature of the principal/agent relationship. But the District Court didn’t stop there. Recognizing that automatically imputing the actions of the third-party directly to the debt buyer was not currently the law of the Ninth Circuit, the Court went on to analyze common law principles of agency law to further hold the debt buyer liable for its agent’s violations due to it having a right to control the actions of the agent debt collector. This was a fact-based inquiry taking into consideration the nature of the relationship and contract between those parties. When a debt buyer allows a third party to collect on their behalf, they will always retain some level of control if for no other reason than to maximize their profits. The District Court provided the framework for consumers to pierce the relationship between the debt buyer and its debt collector agent.

Debt collectors attempted to create a structure to avoid liability for FDCPA violations. By proclaiming themselves “passive debt buyers” and then hiring insolvent debt collectors to do the physical collection work, debt collectors thought they had found a workaround for FDCPA compliance. The Ninth Circuit saw right through that. They are debt collectors. They cannot get around liability simply by hiring someone else to collect from the consumer.

by: Joel Shapiro

The OSB Consumer Law Section led an effort to increase access to legal representation with the passage of Senate Bill 181 in the recent session of the Oregon Legislature.  SB 181 was signed into law by Governor Kate Brown on June 15^th, and takes effect on January 1, 2022.

SB 181 is intended to expand the number of clients who have access to pro bono representation.  For certain statutory claims – including many claims commonly pursued in consumer cases – the court may award reasonable attorney fees to successful parties’ lawyers.  However, judges often view pro bono representation as not meriting the same level of hourly fee award as legal work performed for a paying client, even though pro bono work entails the same diligence and skill.

When an attorney offers to undertake pro bono representation for a client who cannot afford to pay an hourly fee, or in a case with a value too small to justify a contingent fee agreement, that does not mean the attorney is agreeing to forego the opportunity to seek a reasonable hourly fee as the prevailing party in the case.

Too frequently, however, judges incorrectly view pro bono representation as an offer to work for free.  In fact, many legislators held that mistaken view as well.   Fortunately, through the testimony of OSB Consumer Law Section Past Chair Chris Mertens, legislators were educated that pro bono representation means attorneys are undertaking cases at no charge to their clients – not that they are giving up the right to reasonable compensation for their services, should they prevail.

SB 181 clarifies that the fact that a case is undertaken pro bono should not be deemed by the court as a basis to reduce the reasonable attorney fee that is awarded.  Encouraging judges to award the full reasonable attorney fees sought in pro bono cases is intended to increase the incentive for lawyers to take on pro bono cases and thereby expand the number of low-income Oregonians who have access to legal representation.

While Chris Mertens was the sole witness to testify before both the Senate and House Judiciary Committees, support for SB 181 was also provided by the Oregon Consumer League, the Oregon Judicial Department, the Oregon Progressive Party, and the Independent Party of Oregon through written testimony.

To view the text and legislative history for SB 181, please see:

https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/SB181

 

By Colin D. A. MacDonald

On June 25, the U.S. Supreme Court may have significantly restricted certain consumer class action lawsuits’ ability to proceed in federal court. The Court held that class members must have suffered a concrete injury to have standing under Article III of the Constitution, even when suing under a statute that allows for statutory damages without showing actual injury. The 5-4 ruling in TransUnion LLC v. Ramirez could make it difficult to enforce certain consumer informational rights through federal class action lawsuits because of the difficulty of proving the link between particular violations and later injuries.

The suit began when Sergio Ramirez attempted to buy a car. Ramirez alleged that, when the dealer obtained a copy of his credit report, he learned that his TransUnion credit report noted his name as matching a list of persons designated by the U.S. Office of Foreign Asset Control (OFAC) as posing a risk to national security. Ramirez could not buy the car (though his wife was able to purchase it in her own name), and he claimed the incident caused embarrassment in front of his wife and father-in-law and caused him to cancel a vacation abroad for fear of the label causing issues with his travel. The trial court found that TransUnion had not used anything besides first and last names to confirm that the consumer reported as a “potential match” was the same as the person on the OFAC list.

Ramirez sued TransUnion and sought class certification on behalf of 8,185 consumers incorrectly identified as being on the Treasury Department list. The suit raised three claims, all under the Fair Credit Reporting Act. First, it alleged that TransUnion had published false credit information to third parties. Second, it alleged that TransUnion provided incomplete information to consumers requesting their own credit reports because the OFAC list information was only sent in a separate mailing. Finally, it alleged that TransUnion failed to provide a notice of consumer rights in the second mailing containing the notification about the OFAC list. The case went to trial in the Northern District of California and the class prevailed on all counts. The Ninth Circuit affirmed the verdict.

The Supreme Court’s ruling significantly narrows the class’ victory. According to the majority opinion by Justice Brett Kavanaugh, a plaintiff class must prove that its members suffered some real harm beyond a “bare procedural violation” to satisfy the Constitution’s requirements. Thus, the court reasoned, only the 1,853 members of the class whose credit reports with the inaccurate information were sent to third parties have standing, and even then only as to the first count. The court acknowledged that “reputational harm” could be a concrete injury, even if it is not readily quantifiable. For the remaining 6,332 class members, the Court held that merely receiving inaccurate information oneself is not a sufficient injury to create standing.

Justice Clarence Thomas, joined by the Court’s three traditionally liberal justices, dissented. Thomas argued that, where Congress has created by statute a claim to enforce a private right, that alone is enough to create standing. Furthermore, the dissenters argued, the realization that one has been identified as a possible terrorist should also be considered a meaningful harm.

Several consumer groups, including Public Justice and the National Consumer Law Center, submitted amicus curiae supporting the plaintiff class, warning that a ruling like that ultimately reached by the majority could undermine important consumer protections. The FCRA, like many federal consumer protection statutes with a private right of action, permits plaintiffs to choose between seeking actual damages based on proven harm or statutory damages based on a fixed range. Where information is inaccurate or is improperly released, it can often be difficult to place a clear value on actual damages. Statutory damages provisions provide an incentive for plaintiffs to enforce and companies to respect consumer rights.

Privacy rights groups raised similar concerns. The Electronic Privacy information Center and Electronic Frontier Foundation both submitted amicus briefs in support of the class. They note that the improper release of truthful but sensitive information, just like the release of inaccurate information, can have real harm to consumers, but that those harms are difficult to quantify. Several large tech companies, including eBay and Facebook, submitted their own amicus briefs supporting TransUnion, arguing that allowing large class actions alleging technical violations of privacy laws made it possible for plaintiff law firms to extract large settlements that did little to compensate consumers while resulting in windfalls for the lawyers. The ruling does not alter the legal requirements on credit reporting agencies like TransUnion, or the authority of government agencies at the state and federal level to enforce the FCRA or any other consumer law. With those agencies stretched thin, however, the Ramirez ruling may significantly alter companies’ compliance strategies and consumers’ options to protect their rights.

The Court declined to reach a separate question about whether Ramirez’s own experience was so much worse than other class members’ that he was not sufficiently “representative” of the class under the Federal Rules of Civil Procedure. The United States had suggested in its own amicus brief the Court take a third route, arguing that, while the Court should find the class as a whole had standing, Ramirez’s experience was too unique to give the jury and the trial court an accurate picture of the severity of the injury to those whose information was never sent to third parties.

The case returns to the Ninth Circuit for a new determination about the appropriateness of class certification for the narrower class and claims.

 

Colin D. A. MacDonald is a consumer protection attorney for the Federal Trade Commission’s Seattle-based Northwest Region. The views expressed in this article are his own and do not necessarily reflect those of the Commission or of any individual Commissioner.

by Jeremiah Ross

I often field calls from people that have been ripped off by an Oregon car dealer in a Yo-Yo Sale. Yo-Yo Sales are also referred to as “bushing scams.” These scams start when a car dealer sells a consumer a vehicle and offers to finance the vehicle. The consumer signs financing paperwork and takes the vehicle home. Usually, the consumer is under the impression the financing is complete and the vehicle is theirs. Unbeknownst to the consumer, the dealer may have made little, if any, effort to find financing on the agreed-upon terms.  Days, weeks, or even months later, the dealer contacts the consumer and informs them financing could not be obtained at the agreed upon terms. The scam is complete when the dealer has the consumer agree to new, less favorable, financing terms for the vehicle. This often results in the consumer paying a higher interest rate, extending the loan terms, and putting an additional down-payment down on the vehicle. Dealers also use this technique to attempt to sell the consumer accessories and add-ons that the consumer initially refused to purchase. Yo-Yo Sales are all too common in Oregon and they are legal, but only if the dealer strictly complies with Oregon law.

Yo-Yo Scams put consumers in a difficult position. The consumer feels pressure to comply with the dealer’s new demands because they have become attached to the new vehicle. If a consumer pushes back and refuses to either sign new loan terms or return the car, the dealership will often threaten to repossess the vehicle or report the vehicle as stolen to law enforcement. If consumers refuse to comply with the dealer’s demands the dealership will usually re-possess the vehicle and may claim that the down payment or trade-in vehicle is being used to offset the damage or mileage on the purchased vehicle. Consumers usually eventually succumb to the dealership’s bullying tactics and end up paying much more for the purchased vehicle than they can afford. I have even represented consumers in cases where the dealerships sent employees to the consumer’s place of employment to attempt to get them to sign new documents with less favorable terms.

Once a lawyer gets involved the dealership may continue those threats and attempt to force the consumer to return the vehicle and then return the down-payment. If the consumer agrees to return the vehicle, the dealer may be at risk for an unlawful trade practices violation (ORS 646.608(1)(ss), ORS 646A.090, and OAR 137-020-0020(3)(p), (x), (y), and (z)) but the dealers will often try to make the case about damages and whether the consumer suffered an “ascertainable loss,” which the consumer must show to prove an unlawful trade practice has occurred.  The dealer sells the purchased vehicle and argues to the court that the consumer has not suffered any loss because the dealer returned the consumer’s down payment, and the consumer was able to drive around in a vehicle for a few weeks or months without a car payment. That is not a good outcome for the consumer.

However, if the dealer broke the law, the consumer can fight to stay in the vehicle by seeking  a temporary restraining order (“TRO”) and preliminary injunction after filing a lawsuit. ORCP 79 permits the court to issue a temporary restraining order or preliminary injunction to prevent illegal conduct from occurring and also in situations where it appears a party’s conduct will render the judgment ineffectual. In other words, ORCP 79 allows the court to issue a restraining order preventing the car dealership from continuing to violate the law or repossessing the vehicle and re-selling it prior to the case being resolved.

This is an aggressive strategy that puts the dealership in a difficult position at the beginning of the case. The dealer will have to explain within a few weeks after the start of the suit why they broke the law during the Yo-Yo Sale. This rapid timeline is more consumer-friendly if the consumer possesses evidence to support their case and can also assist in keeping the case out of private arbitration.

In order for the consumer to seek a TRO, the consumer will have to file a Complaint in Circuit Court. The consumer can simultaneously file the Motion for a Temporary Restraining Order and Order to Show Cause why a preliminary injunction should not enter. In Multnomah County, you must do this through Civil ex parte. A party is not required to do this at the same time as filing the Complaint, but it often makes sense to do so in these cases to prevent the dealership from selling the purchased vehicle.

A TRO may be granted with or without notice.  ORCP 79B.  However, it is best to fax and email a copy of the Complaint, Motion, and any supporting documents to the car dealer prior to appearing at ex parte. It is also a good practice to send a letter informing the dealership that you intend to appear at ex parte and provide them information regarding the time and location of the appearance and to document your efforts to provide notice in your Motion and supporting documentation.

At the hearing on the TRO, the judge can consider a “verified copy of the Complaint” and any other documents, affidavits, or declarations that you present. However, keep in mind that these hearings go very quickly, and the judge will not have much time to review the pleadings and submissions.

The consumer must emphasize in their memorandum in support of the motion and at the hearing that the TRO is needed to prevent the continuation of the Yo-Yo Sale that is in violation of the UTPA, federal statutes, or Oregon administrative rules. ORS 646.636 specifically permits the court to “make such additional orders or judgments as may be necessary to restore to any person in interest any money or property, real or personal, of which the person was deprived by means of any practice declared to be unlawful in ORS 646.607 or 646.608 or as may be necessary to ensure the cessation of unlawful trade practices.” The TRO and Preliminary Injunction is an order to ensure the cessation of the unlawful trade practices and is necessary to restore the consumer’s interest in the property. It is good to have evidence that the dealer has threatened to repossess the vehicle and how repossession would affect the consumer.

The other issue to highlight to the court is that the consumer has suffered an “ascertainable loss.” An “ascertainable loss” is not synonymous with damages. Simonsen v. Sandy River Auto, LLC 290 Or App 80 (2018) affirmed that an ascertainable loss can be more than a quantified measurement of diminished market value.  If the consumer was unable to obtain financing on the promised terms, that is an ascertainable loss.  If the consumer provided a down payment or had a trade-in vehicle that was not returned, that is an ascertainable loss.  However, there are also subtler ascertainable losses such as not being able to have the vehicle registered in their name. This loss occurs because the dealer has yet to submit the documents to the DMV.  Another ascertainable loss may be loss of use of the vehicle after having to park the vehicle in a garage or other area to prevent it from being repossessed. Moreover, any modifications made to the vehicle or repair work done on the vehicle could be an ascertainable loss if the consumer must return the vehicle.

Once you have made a prima facie case that the dealership has violated the UTPA (ORS 646.608, et seq.), then you must address the issue of “security,” usually in the form of a bond. An applicant for a preliminary injunction is required to give security, “in such sum as the court deems proper, for the payment of such costs, damages, and attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” I have argued successfully in these circumstances that the security should be the amount of the monthly payment that the consumer had agreed upon in the initial retail installment contract or financing agreement. The court ordered that the consumer’s monthly payment be made to the court and be held by the court until otherwise ordered. If the court refuses this type of arrangement, then security bonds can be purchased through commercial brokers.

It is good practice to bring a pre-drafted Order with you that incorporates the necessary requirements under ORCP 79B(2). If the court grants the TRO it will sign the order and set a hearing on the preliminary injunction within 10 days, unless good cause exists to extend that time. Then you must prepare for the preliminary hearing.

You must provide the dealership at least five days’ notice of the preliminary injunction hearing. The hearing on a preliminary injunction is essentially a mini bench trial and the party seeking the injunction must make prima facie showing on each element.  You must put on evidence, which may require you to subpoena a witness or documents. You should also prepare a pre-hearing memorandum explaining why a preliminary injunction is necessary. These are typically the same reasons articulated in your memorandum in support of the TRO. You may need to request discovery and will have to move the court to do so either during the hearing on the TRO or before the preliminary injunction hearing. Every case is different and will present unique tactical and strategic decisions regarding how to present evidence, the types of evidence, and how you will introduce it. Additionally, you can consider stipulating that all evidence that is received into evidence at the preliminary injunction hearing also be considered received into evidence at trial. Again, these are strategic and tactical decisions that must be made and considered.

Another thing to consider is that the legal authority on Oregon’s provisional process rules is scant. ORCP 83C prevents using the “provisional process” statute in cases arising from consumer transactions. This may be an issue that comes up at your hearing. However, it is important to remind the court that ORCP 83 and 85 are tools for the dealerships and finance companies to use when someone isn’t honoring their end of the contract. ORCP 79 is available for consumers that are victims of consumer scams and Yo-Yo Sales.

Consumers should not be forced into a difficult decision because of the dealership’s disregard for the law. TRO’s and preliminary injunctions are a way for the consumer to level the playing field, maintain the status quo, and prevent the dealership from repossessing the vehicle. They are time-consuming and they can be risky, but they also can be powerful tools to stop the dealership’s unlawful conduct.

If you or someone you know has been ripped off or is a victim of auto dealership fraud call Oregon Consumer Attorney Jeremiah Ross at 503.224.1658. Please remember that the law is constantly changing, and this is not to be considered legal advice.

April 2021 was a big month for consumer related cases.  This article will provide a brief overview of four recent court decisions throughout the country with the potential to have a big impact on consumers moving forward.

AMG Capital Management, LLC v. Federal Trade Commission

On April 22 the Supreme Court of the United States, in a 9-0 decision, made it much harder for the Federal Trade Commission to timely seek redress for consumers by holding that section 13(b) of the Federal Trade Commission Act, which allows the FTC to seek “a permanent injunction,” concerns only prospective injunctive relief and does not allow the FTC to seek retrospective monetary relief in the form of restitution or disgorgement.  The Supreme Court noted that other sections of the Act do allow the FTC to seek such redress, but only after they have adjudicated the claims before an administrative law judge and exhausted any necessary review by the FTC and any appeals.

The FTC had relied on section 13(b) to bring enforcement cases for over four decades and the FTC’s authority to do so had been upheld by several Court of Appeals decisions.  In a statement responding to the decision, the FTC argued that the court had “deprived the FTC of the strongest tool [it] had to help consumers most,” noting that Section 13(b) enforcement cases have resulted in “$11.2 billion in refunds to consumers during just the past five years” and urged Congress to act to restore the agency’s powers.  https://www.ftc.gov/news-events/press-releases/2021/04/statement-ftc-acting-chairwoman-rebecca-kelly-slaughter-us

The Court’s opinion can be read here: https://www.supremecourt.gov/opinions/20pdf/19-508_l6gn.pdf

Facebook, Inc. v. Duguid

The AMG Capital Management ruling came on the heels of SCOTUS’ April 1 ruling in Facebook, Inc. v. Duguid.  In another 9-0 decision, the Supreme Court narrowed the types of devices that qualify as an “automatic telephone dialing system” under the Telephone Consumer Protection Act of 1991 (TCPA).

As defined by the TCPA, an “automatic telephone dialing system” is a piece of equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers.  In its decision, SCOTUS determined that the phrase “random or sequential number generator” qualified both “store” and “produce” meaning that a database designed merely to store and call phone numbers inserted into it does not fall under the TCPA.

Given the changes in technology since the TCPA was first enacted and the fact that the majority of companies no longer use equipment that actually randomly generates numbers, some consumer advocates worry the decision will lead to an increase in robocalls, while proponents of the decision note that other provisions of the TCPA – notably those prohibiting prerecorded calls without the consent of the receiver – remain intact and argue that, under a broader interpretation of the statute every smartphone would qualify as an “automatic telephone dialing system.”  See, e.g., https://www.nclc.org/media-center/supreme-court-deals-blow-to-protections-against-robocalls-advocates-urge-congress-to-act-to-prevent-a-tsunami-of-unwanted-calls-and-texts-to-cellphones.html  and https://news.bloomberglaw.com/us-law-week/facebook-v-duguid-robocall-ruling-its-about-time.

The Court’s opinion can be read here: https://www.supremecourt.gov/opinions/20pdf/19-511_p86b.pdf

Online Merchants Guild v. Cameron

On April 29 the Sixth Circuit overturned a ruling by a judge in the Eastern District of Kentucky which had cited the dormant commerce clause’s extraterritoriality doctrine to severely limit the Kentucky Attorney General’s power to enforce Kentucky’s anti-price gouging laws against online sellers.  In March 2020 the Kentucky Attorney General served a subpoena and a civil investigative demand on a Kentucky company because the AG had “reason to believe” the  company had engaged, was engaging in, or was about to engage in violations of Kentucky’s anti-price gouging law in regards to sales of hand sanitizer and respirators sold on Amazon.  The Online Merchants Guild, of which the target company was a member, initiated a lawsuit seeking to prevent the Kentucky AG from enforcing its anti-price gouging laws against the Guild’s members alleging, in part, that Kentucky’s anti-price gouging laws set an unlawful ceiling for online sales beyond its state lines because Amazon did not allow users to set different prices for different states.  After the district court agreed with Online Merchants Guild and issued an injunction, the Kentucky Attorney General appealed, and the Sixth Circuit reversed noting that it was not Kentucky’s law that dictated a price ceiling but Amazon’s structuring of its online marketplace so that there can be only a single national price for goods.  As such, Kentucky’s anti-price gouging law did not “by its express terms or by its inevitable effect” control wholly out-of-state commerce and did not violate the dormant commerce clause.

The Court’s opinion can be read here: https://cases.justia.com/federal/appellate-courts/ca6/20-5723/20-5723-2021-04-29.pdf?ts=1619708417

Krakauer v Dish Network, LLC

Also on April 29, the District Court for the Middle District of North Carolina adopted in large part the recommendations of an appointed special master regarding how to distribute cy pres funds stemming from a $61 million dollar judgment awarded to over 18,000 class members that received unlawful telephone solicitations in violation of the Do Not Call Registry.  Previously the parties had agreed that over $10 million in judgment funds would not be distributed to class members because they failed to fill out the required claim form and that money was ready to be disbursed.  After soliciting applications from organizations that work to address one or more of the objectives of the TCPA, the special master identified 12 organizations they recommended receive cy pres funds.  Among other recipients, the district court’s order will provide nearly $3.0 million dollars for the National Legal Aid and Defendant Association, $2 million for state Attorneys General, and over $1.7 million for the National Consumer Law Center, Inc.

The Court’s order can be read here: https://www.anylaw.com/case/krakauer-v-dish-network-l-l-c/m-d-north-carolina/04-29-2021/d_QdKHkBoz_ZJneprDRt