By David Koen

In the past decade, Wells Fargo Bank, N.A., has repeatedly shocked and awed consumers and regulators with a variety of unlawful practices. Revelations of the bank’s misdeeds – admitted and alleged – continue.

In a regulatory filing on August 3, 2018, Wells Fargo disclosed that a software mistake miscalculated eligibility for home loan modifications, causing about 625 homeowners to be denied relief. Approximately 400 of such customers then lost their homes to foreclosure. The errors occurred between April 2010 and October 2015.

Wells Fargo has created an $8 million compensation fund for affected homeowners. That’s an average of $12,800 for each such homeowner.

The bank also allowed that “[t]his effort to identify other instances in which customers may have experienced harm is ongoing, and it is possible that we may identify other areas of potential concern.”

Wells Fargo’s announcement that more of its customers may been harmed follows a similar statement the bank made after a previous scandal in which it was embroiled. In 2016, the bank’s own analysis initially revealed that it had created more than 2 million accounts that may not have been authorized by consumers. A year later, Wells Fargo revealed that it had created up to 1.4 million more potentially fake accounts.

Responding to the mortgage modification mishap, U.S. Senator Elizabeth Warren of Massachusetts tweeted, “Because of an error @WellsFargo made, 400 of its customers lost their homes. What’s the bank doing to make it right? Setting aside a few thousand dollars for each of the people affected. Pathetic. The execs who oversaw this – including CEO Tim Sloan – should be fired.”

Wells Fargo spokesman Tom Goyda said that “customers are receiving what Wells believes is appropriate given the circumstances.”

Banking while Black

Two black Florida residents have sued Wells Fargo for racial discrimination in recent months following incidents in which the bank allegedly either threatened to or did call the police on its customers.

In one incident, 78-year-old Barbara Carroll alleged she tried to cash a check for $140 at a Wells Fargo branch. Bank employees then refused to cash her check or return her driver’s license, asked what she did for the money and told her they had called police. Carroll said the employees suspected that Carroll was guilty of forgery, even after the man who wrote the check confirmed its legitimacy. On July 18, Carroll sued Wells Fargo in the U.S. District Court for the Southern District of Florida, Case No. 0:18-cv-61646.

The other suit was brought by Jean Romane Elie. Elie has alleged that after trying to withdraw money for rent, a teller called the Palm Beach County Sheriff’s Office. According to Elie, he was handcuffed, detained, and accused of committing a felony. The case is pending in Palm Beach County, Florida, Circuit Court.

A Wells Fargo spokeswoman told The Washington Post that the bank “opposes discrimination of any kind.”

The cities of Sacramento, Philadelphia, Baltimore, Miami and Memphis have also sued Wells Fargo for racial discrimination. In 2012, Wells Fargo entered into a $175 million settlement with the U.S. Department of Justice after Baltimore alleged the bank had steered minorities into subprime loans and gave them less favorable rates than white borrowers. The bank has also settled Memphis’ suit against it.

By Kevin Mehrens

The field of consumer law encompasses many different statutes protecting consumers. From the Fair Debt Collection Practices Act to the Unlawful Trade Practices Act, these laws are designed to protect consumers (particularly low-income ones) from abuses of creditors and debt collectors as well as from unscrupulous businesses who would prey upon the financially vulnerable. The portion of the community protected by consumer protection laws is very much the same section of the population that is served by the protections of state and municipal landlord-tenant statutes.

Over the last five years Oregon, and Portland in particular, has seen a rapid increase in residential housing prices. The average cost of a two-bedroom unit in Portland as of August, 2018 was over $1,500.00 per month.[i] This rapid increase in housing prices has had the effect of forcing many low-income families out of their residences in Portland. The response from renters has been a backlash against landlords who have chosen to increase rents with little to no increase in services and conditions of the rental units – everything from renters strikes[ii], massive litigation over the conditions of rental units,[iii] to large- and small-scale protests over rental increases and housing condition as well as the perceived failure of the State legislature to address the problems.[iv]

In response to the dramatic increase in rental prices, state and local governments have passed, or attempted to pass, a series of acts designed to lessen the impact on affected residents. Notable among these is the Portland City Code § 30.01.085, also known as the Portland Mandatory Renter Relocation Assistance Ordinance. Initially passed as a temporary, emergency measure by the Portland City Council in November 2015, the Ordinance has gone through a number of revisions. It was adopted in its current form as a permanent measure in March 2018. This article will describe the goals and terms of the Ordinance as well as discuss the procedures through which tenants can protect themselves in order to ensure that their landlord abides by the terms of the Ordinance.

The Portland City Council enacted the Ordinance in order to “protect the availability of publicly assisted affordable housing for low and moderate income households . . . .”[v] The stated policy for the Ordinance is “that all Portlanders, regardless of income level, family composition, race, ethnicity or physical ability, have reasonable certainty in their housing, whether publicly assisted or on the private market. . . .[vi] In order the effectuate these goals, the Ordinance requires a landlord to compensate a tenant in an amount up to $4,500.00 depending on the size of the dwelling unit when the landlord either (1) terminates the tenancy without cause or (2) raises the rent by 10 percent or more during any rolling 12-month period.

No Cause Termination of Tenancies. Oregon state law only requires 30 or 60 days’ notice before a landlord can terminate a residential tenancy.[vii]  Portland now requires 90 days’ notice (with certain, narrow exceptions) for all no-cause terminations. These notices must now include a description of a tenant’s rights under the Ordinance—including the eligible amount of the relocation assistance. Landlords can still terminate a tenancy with no cause but should they choose to do so they must pay the tenants the relocation assistance. The payment of the relocation assistance must be made no later than 45 days prior to the termination date specified in the termination notice. So, for example, if a landlord issues a termination of tenancy to a tenant on December 15 with an end date of April 30, the landlord must pay the tenant the relocation assistance by March 16 at the latest.

In addition to being triggered upon the delivery of a no-cause termination notice, should a landlord fail to renew or replace an expiring lease, it is obligated to pay the tenant the relocation assistance.

Rent Increase of Ten Percent. The Ordinance first requires at least 90 days’ notice of any rent increase. Should the increase be ten percent or more (in a rolling 12-month period, two five-percent increases in a calendar year would trigger the requirements under the Code) the tenant is confronted with a series of choices:

• The tenant can accept the increased rent and remain in the unit and pay the increased rent;
• Within 45 days after receiving the notice of the rent increase, the tenant can send a written request to the landlord for their relocation assistance;
• Within 31 days of the landlord receiving the request for relocation assistance, the landlord must pay the tenant the eligible assistance amount;
• Next, the tenant, after receiving the relocation assistance, has six (6) months to do one of the following:
  • Pay back the relocation assistance and pay the increased rent, or;
  • Provide the landlord with a termination notice and move out of the unit.

So the provisions of the Ordinance dealing with situations in which a landlord dramatically increases the rent place an affirmative obligation on the tenant to request the money or else they will presumably be deemed to have accepted the rent increase. And while the landlord is required to provide a notice of the tenant’s rights with any rent increase, there is no specified form that such a disclosure needs to be in. The Ordinance simply states, “A Landlord shall include a description of a Tenant’s rights and obligations and the eligible amount of Relocation Assistance under this Section 30.10.085 with each and any . . . Increase Notice . . . .[viii]  Such a description could be in the form of a copy of the Ordinance, which is not so easy to understand, particularly for tenants for whom English is not their primary language.

The legal and political challenges to the tenant protection measures are far from over. These tenant protections have seen a concerted response from landlord groups seeking the repeal or rollback these protections as being too onerous for the landlords.[ix] In July 2017, a landlord challenged the Ordinance in Multnomah County Circuit Court as, among other things, violative of an Oregon statute prohibiting rent control.[x] While Judge Henry Breithaupt found that the Ordinance was valid, the case is currently on appeal with the Oregon Court of Appeals. The next few years will certainly see many more, new clashes between landlords and tenant advocacy groups and attorneys as the regulations and laws are fleshed out.

[i] https://www.rentcafe.com/average-rent-market-trends/us/or/portland/

[ii] https://www.wweek.com/news/city/2018/07/31/tenants-in-southeast-portland-launch-a-rent-strike-hoping-to-stay-in-their-gentrifying-apartment-complex/

[iii] https://katu.com/news/local/jury-tenant-wins-20-million-lawsuit-against-landlord-for-safety-hazards

[iv] https://www.oregonlive.com/portland/index.ssf/2017/06/tenants_rights_activists_prote.html

[v] Portland City Code § 30.01.020

[vi] Portland City Code § 30.01.010

[vii] Oregon Revised Statutes § 90.427

[viii] Portland City Code § 30.01.085 D

[ix] https://www.oregonlive.com/portland/index.ssf/2018/08/landlords_prep_for_new_fights.html

[x] Owen, et al. v. City of Portland, No. 17CV05043

By David Venables

Shortly before the end of the Great Recession, Congress passed the Protecting Tenants at Foreclosure Act (PTFA) of 2009 to protect tenants from post-foreclosure eviction.  Although the PTFA’s tenant protections expired on December 31, 2014, they were recently revived when President Trump signed the Economic Growth, Regulatory Relief, and Consumer Protection Act (Senate Bill 2155) into law.  Taking effect on June 23, 2018, the Act repealed the “sunset provision of the Protecting Tenants at Foreclosure Act” and restored “notification requirements and other protections related to the eviction of renters in foreclosed properties.”

PTFA

The fundamental purpose of the PTFA is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing.¹ To that end, the law establishes a minimum time period that a tenant can remain in a foreclosed property before eviction can be commenced and does not affect any state or local law that provides longer time periods or other additional tenant protections.

Under the law, the immediate successor in interest following any non-judicial or judicial foreclosure of a “federally-related mortgage loan,” dwelling, or residential real property must (a) provide bona fide tenants with 90 days’ notice prior to eviction and (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property.  The PTFA does not require tenants to pay rent to the successor in interest however, any successor in interest may accept rent and, in doing so, assume the rights and obligations of a landlord under Oregon’s Residential Landlord and Tenant Act.

A lease or tenancy is bona fide only if:

(1)       The mortgagor or a child, spouse, or parent of the mortgagor under the contract is not the tenant;

(2)       The lease or tenancy was the product of an arm’s-length transaction; and

(3)       The lease or tenancy requires the receipt of rent that is not substantially less than fair market rent or the rent is reduced or subsidized due to a federal, state, or local subsidy.

Now that the PTFA has been restored, bona fide tenants at the time of a foreclosure of residential property will once again be able to take advantage of these protections to help ease the transition to new housing.

¹ https://www.federalreserve.gov/boarddocs/supmanual/cch/200911/protect.pdf

By Colin D. A. MacDonald

On June 18, President Trump nominated Kathleen “Kathy” Kraninger to be the new Director of the Consumer Financial Protection Bureau (CFPB), to succeed Acting Director Mick Mulvaney.  Kraninger currently serves as Associate Director of the Office of Management and Budget (OMB) for General Government. She is an attorney with a long government resume but has not previously worked in consumer protection or financial regulation. Kraninger will require confirmation by the Senate to take office. The Senate Banking Committee held a hearing on Kraninger’s nomination July 19. Mulvaney is expected to continue acting as director in the interim.

Kraninger’s appointment sparked mixed reaction. The White House says that Kraninger “will bring a fresh perspective and much-needed management experience to the [CFPB], which has been plagued by excessive spending, dysfunctional operations, and politicized agendas.” Ohio Sen. Sherrod Brown, the ranking Democrat on the Senate Banking Committee, said that “The White House should pick an experienced, serious, independent leader.” Sen. Elizabeth Warren (D-MA) said that she would place a hold on Kraninger’s nomination, essentially preventing the Senate from voting on the nomination without extraordinary action by the Republican majority, until more information was provided about Kraninger’s role in current Trump Administration policies involving separation of immigrant families at the border.

Kraninger has served in a variety of legislative and executive roles for Republicans, but none of them involved the type of laws the CFPB enforces. At OMB, Kraninger’s role focuses on policy at the Department of Homeland Security (DHS) and the Department of Justice.  In addition to her work at OMB, she previously held political appointments at both DHS and the Department of Transportation under President George W. Bush. She was also a professional staff member for the Senate’s Homeland Security and Governmental Affairs Committee. Kraninger holds a J.D. from Georgetown University and a B.S. from Marquette University.

The CFPB Director has full authority over the agency’s enforcement, regulatory, and education activities. The Bureau regulates a broad range of consumer financial services providers, and its jurisdiction overlaps with the Federal Trade Commission as well as federal bank regulators. In addition to judicial and administrative enforcement authority, it has supervisory powers that allow it to compel large consumer financial services providers to submit to inspections of their practices. The director serves for a five-year term and may only be removed by the President for cause.

By nominating Kraninger – or anyone –  before June 22, the President cleared the way for Mulvaney to continue serving as Acting Director. Under the Federal Vacancies Reform Act, the President may designate a Senate-confirmed officeholder to act as the head of a federal agency during a vacancy, but that appointment is limited to 210 days unless a permanent replacement is nominated. June 22 would have marked 210 days for Mulvaney.

The nomination came after months of speculation about the Trump Administration’s intentions for the agency, which has been a target of Republican ire since it was created. Trump allies had criticized the leadership of Richard Cordray, the Obama appointee who led the agency from 2011 to 2017, for being too aggressive and hurting small businesses. Under the Congressional Review Act, Congress and Trump reversed two regulations promulgated by Cordray’s CFPB – one prohibiting financial service providers from using arbitration agreements that bar consumers from filing or joining class actions and one regulating indirect auto lenders.

The controversy over the directorship has long been fraught. Critics decry the single director structure as placing too much power in the hands of a single official whose actions are not subject to presidential review. Prior to taking his post at OMB, then-Congressman Mulvaney was particularly critical of the agency and called for its restructuring or abolition. Proponents of the agency argue that insulation from political control is necessary to ensure that the agency acts for consumers instead of industry. Opponents of the agency have challenged the leadership structure, as well as the very existence of the agency, as unconstitutional. Lower courts have issued differing opinions, but in January, the full U.S. Court of Appeals for the D.C. Circuit upheld the agency and its structure as constitutional by a margin of 7-3.

Shortly after the agency launched, President Obama was expected to appoint Warren as Director, but opted to appoint Richard Cordray instead when it appeared she could not secure Senate confirmation. Republican Senate leaders filibustered Cordray’s appointment as well, ultimately leading to the political showdown that ended the application of the filibuster to most presidential nominations.

The dispute took on a new dimension when the President appointed Mulvaney to lead the agency in an acting capacity on November 25, the day Cordray resigned. On his last day in office, Cordray named his chief of staff, Leandra English, to the long-vacant position of Deputy Director so that she could assume leadership until a permanent replacement was confirmed. Trump then promptly named Mulvaney, already serving as the Director of OMB, to simultaneously serve as Acting Director at the CFPB. English sued Mulvaney, unsuccessfully seeking an injunction blocking Mulvaney from taking office, but announced she would drop her suit and resign from the agency after Trump nominated Kraninger. For now, the status quo remains with Mulvaney as Acting Director at CFPB and Director of OMB and Kraninger as Associate Director at OMB.

By Kelly D. Jones

On May 31, 2018, in Scharfstein v. BP West Coast Products, LLC, the Oregon Court of Appeals upheld a 2014 Multnomah County jury verdict (as amended by the trial court judgment) awarding $409 million dollars in statutory damages to a previously certified class of millions of Oregon consumers that were the victims of BP’s unlawful trade practices at its affiliated gas stations in Oregon.  292 Or. App. 69 (2018).

More specifically, the class claims against BP stemmed from BP’s violations of Oregon’s Unlawful Trade Practices Act (UTPA) for overcharging consumers for gas at its affiliated stations in Oregon. BP’s signage advertised the cost of its gas per gallon as a certain amount, but when consumers filled their tanks at BP’s ARCO and ampm stations, and then paid with their debit cards, they were charged an additional unlawful and undisclosed $.35 fee on top of each transaction. The false representations about the true cost of BP’s gas violated ORS 646.608(1)(u) of the UTPA, which provides that a “person engages in an unlawful practice if in the course of the person’s business, vocation or occupation the person * *  * [e]ngages in any other unfair or deceptive conduct in trade or commerce.”

Pursuant to ORS 646.608(4), a private cause of action for violating the “catch all” provision of ORS 646.608(1)(u) must incorporate an associated violation of an administrative rule adopted by the Oregon Attorney General. Relevant to BP’s unlawful conduct in this case, the Attorney General had adopted numerous rules, set forth in OAR chapter 137, division 20, regulating the advertising, and mandating specific notification and display, of gas prices (Gasoline Price Advertising). At the trial stage, pursuant to ORS 646.638(1), the class plaintiff opted for statutory damages of $200 for each class member, rather than the $.35 illegal fees per transaction as actual damages. As required under ORS 646.638(8) to award statutory damages in a class case, the jury found that the class members’ ascertainable loss ($.35 card transaction fee) resulted from BP’s reckless UTPA violation.

Previously, in BP W. Coast Prods., LLP v. Ore. DOJ, 284 Or. App. 723, 725, 396 P.3d 244, 246 (2017), the Oregon Court of Appeals rejected BP’s challenge to the validity of Oregon’s Gasoline Price Advertising Rule (“Rule”).

Broadly stated, BP’s chief assignments of error were that (1) the $.35 card transaction fee did not violate the Rule because the Rule does not prohibit a flat fee that is not part of the price per gallon of gas, (2) in accordance with the Oregon Supreme Court’s holding in Pearson v. Philip Morris, Inc., 358 Or. 88, 90, 361 P.3d 3 (2015) the class should not have been certified (or should have been decertified) because ascertainable loss would have to be proven on an individualized basis through each class member proving that they acted in reliance upon BP’s gas price advertising, and (3) the award based upon $200 statutory damages per class member violated the federal Due Process Clause as it was unconstitutionally excessive.

Essentially, the Court rejected the first grouping of BP’s assignments of error because the Rule was validly enacted as previously decided by the Court in its 2017 decision regarding the Rule, and because the trial court correctly interpreted the Rule and its application to BP’s unlawful fee. The Court rejected BP’s second grouping of assignments of error because the class members’ ascertainable loss of the payment of the unlawful fees does not require that the class members prove reliance on any representation made by BP. The Court dismissed BP’s Due Process Clause challenge to the award of statutory damages as “excessive” because BP did not object to the claim for statutory damages until after the verdict had been rendered and the jury had been discharged.

In a press release after the Court of Appeals ruling was released, BP vowed to appeal the ruling in the Oregon Supreme Court: http://www.oregonlive.com/portland/index.ssf/2018/05/court_upholds_portland_jurys_4.html.

The over $409 million award is thought to be the second-largest jury verdict in Oregon history: https://lcbportland.claims/attorneys.

By Chris Mertens, Mertens Law, LLC

April 19, 2018, was the effective date of significant amendments to the regulations promulgated by the Consumer Financial Protection Bureau under the Truth In Lending Act related to mortgage servicing rules. The rules as amended provide a right to receive periodic billing statements on mortgage loans for homeowners who are in or have completed bankruptcy. This long-awaited final rule will give mortgage borrowers greater clarity over what is happening with their mortgage loans and the opportunity to review the loans to ensure proper application of payments and loan servicing by mortgage servicers.

The previous versions of the rule contained an exception to providing periodic billing statements during bankruptcy or after bankruptcy where the personal liability for the mortgage debt was discharged. This often left homeowners in the dark about their mortgage balance, payments, and fees and frustrated with attempts to get information from mortgage servicers.

TILA, Regulation Z, and the Bankruptcy Exception for Mortgage Periodic Billing Statements

The Truth In Lending Act (TILA) is codified at 15 U.S.C. § 1601, et seq. TILA was enacted on May 29, 1968, as Title I of the Consumer Credit Protection Act. Pub.L. 90–321, 82 Stat. 146. Some of the expressed purposes of the Truth In Lending Act are to assure meaningful disclosure of credit terms and to protect consumers from inaccurate and unfair billing practices. 15 U.S.C. § 1601(a).

The Regulations implementing TILA were originally published at 12 C.F.R. 226 as “Regulation Z” (Reg Z). References to the requirements imposed under TILA also include reference to the applicable regulation in Reg Z. 15 U.S.C. § 1602(z).

TILA and Reg Z have been amended and updated several times throughout the years. On July 21, 2010, TILA’s rule making authority was transferred from the Federal Reserve Board to the Consumer Financial Protection Bureau (CFPB) pursuant to provisions enacted by the Dodd–Frank Wall Street Reform and Consumer Protection Act in July 2010. Pub.L. 111–203, H.R. 4173.

TILA was amended by the Dodd-Frank Act, as relevant here, adding requirements that applied to creditors, assignees, and servicers regarding the sending and content of periodic billing statements for mortgage borrowers. Pub.L. 111–203, § 1420, enacted as 15 U.S.C. § 1638(f).

The CFPB issued several new regulations as an updated Reg Z, implementing several provisions of TILA as amended by Dodd-Frank and published as 12 C.F.R. 1026, et seq.

Effective January 10, 2014, the CFPB published several regulations governing the servicing of mortgage loans, and specifically the requirements of servicers to send periodic billing statements, and the required form and content of the statements. The CFPB issued the periodic billing statement regulations under the authority of TILA section 128(f), codified in 15 U.S.C. § 1638(f). See also 38 Fed. Reg. 10958-59 (discussing statutory authority under TILA section 128(f) for periodic billing statement regulations and other loan information requirements).

These regulations contained a broad exception for borrowers in bankruptcy, or whose personal liability on a mortgage debt was discharged in bankruptcy, where servicers were not required to send periodic billing statements. See Former 12 C.F.R  1026.41(e)(5), comment 1-3.

It was common for consumer debtors who filed Chapter 7 and received a discharge to stop receiving mortgage statements as soon as the petition for relief was filed, and never to receive the statements again unless they had reaffirmed the mortgage debt–a rare practice in Oregon. Consumers in Chapter 13 sometimes did not receive statements during the plan period, and had to rely on required notices filed with the court, which sometimes were not timely filed, or not filed at all, to know if their mortgage payment was changing due to escrow or had incurred fees.

Changes to the Mortgage Statement Requirements for Borrowers During and Following Bankruptcy

Effective April 19, 2018, the CFPB’s final amended rules governing the mortgage borrower’s rights to periodic billing statements for their residential mortgage loans provided consumer borrowers rights to statements during and following bankruptcy cases.

Below is a brief summary of the changes to 12 C.F.R. 1026.41(e) as a result of the amendment. The new text of the regulation is more detailed than its predecessor and can be viewed here.

Requirement to Send Statements and Updated Exemption Rules – The Borrower Is in Control

Prior to the amendment there was a blanket exception for sending periodic statements to borrowers in bankruptcy. The new regulation as amended added a two-part test for when a servicer is initially not required to send statements, and both parts must be met. 12 C.F.R. 1026.41(e)(5)(i). The first prong requires the borrower to be a debtor in an active bankruptcy case or have discharged personal liability for the mortgage loan in question. 12 C.F.R. 1026.41(e)(5)(i)(A). These requirements mirror the only ones under the previous version of the rule. Now, in order to be initially exempt from sending statements, one of the following must also be true: The consumer requests in writing that the servicer stop sending statements; The most recent chapter 13 plan provides for surrender of the residential property, avoidance of the mortgage lien, or does not provide for ongoing payments or cure of any default; an order avoiding the mortgage lien, granting the mortgage creditor relief from stay, or otherwise requiring statements to be stopped is entered by the court; or in chapter 7 the debtor’s statement of intention for the property states surrender AND no partial or full payment has been made since the case is filed. 12 C.F.R. 1026.41(e)(5)(i)(B).

The big takeaway for consumer borrowers and their bankruptcy counsel is that even if the lender may initially qualify for an exemption, the borrower has the power to elect to receive statements and disqualify the servicer from the exemption. 12 C.F.R. 1026.41(e)(5)(ii). Any borrower on the loan may request the statements be sent, including by an agent of the borrower, such as a borrower’s attorney. 81 Fed. Reg. 72323.

Modified Statements in Bankruptcy and Post-Discharge.

The recent regulation added a section to 12 C.F.R. 1026.41 modifying the requirements of what information is in a periodic billing statement for a mortgage loan during or following a borrower’s bankruptcy. Generally there are limitations on personal liability, the way some fees are reported is limited, and the amount due is not required to be displayed prominently. 12 C.F.R. 1026.41(f)(1)&(2). The text of new paragraph f and related comments can be found here.

There are specific modifications required for periodic billing statements sent to mortgage borrowers who are in chapter 13 (and chapter 12). 12 C.F.R. 1026.41(f)(3). The modifications essentially implement a common-sense approach of differentiating between pre-petition arrears and payments thereon through the chapter 13 plan and post-petition ongoing payments and fees due. The “amount due” may be limited to the post-petition amounts due. 12 C.F.R. 1026.41(f)(3)(ii)&(iii). The statement must also include the pre-petition arrearage balance, total payments received since the last statement, and total pre-petition payments received since the inception of the bankruptcy case.  12 C.F.R. 1026.41(f)(3)(v). This will allow chapter 13 debtors and their counsel to track the proper application of payments on the arrearages, which before was potentially done behind a curtain – with borrowers not knowing the impact of the payment on pre-petition arrears being received and applied or if the mortgage servicer was delaying proper application.

Timing for Compliance – Single-Statement Exemption

Once the triggering event occurs—including the borrower filing for bankruptcy, a servicer becoming disqualified for an applicable exemption, or non-modified statements being required following reaffirmation or non-discharge of mortgage liability following bankruptcy completion—the servicer is excused from complying for the first statement that is due to have been sent had the triggering event not occurred. Thus, the servicer must comply not with the first immediately forthcoming statement, but the second, following the triggering event. 12 C.F.R. 1026.41(e)(5)(iv). This exemption was a late amendment to the final rule, published by the CFPB on March 22, 2018. 83 Fed. Reg.10553-59.

By Eva Novick

Four consumer protection-related bills passed in the 2018 Oregon legislative session. Only one, SB 1551, has been signed by the governor; the others are on the governor’s desk awaiting signature.

Debt Collection: SB 1553 amends ORS 646.639(2)(t), which was added in 2017 HB 2356. This bill clarifies that this subsection only applies to debt buyers or debt collectors acting on behalf of a debt buyer.

Motor Vehicles: HB 4087 amends ORS 87.152. The bill states that a person may not create, attach, assert or claim a possessory lien on a motor vehicle unless the person performs a service that complies with ORS 646A.480 to 646A.495 and one of the following applies: (1) The person is a franchised motor vehicle dealership; (2) The person is a licensed tower (“holds a towing business certificate”) and the lien is only for transporting or storing a motor vehicle; (3) The lien is against an abandoned motor vehicle; or (4) The person has a bond of $20,000 or more.  If a person does not have a valid possessory lien and refuses to release a motor vehicle after the owner of the vehicle requests the release of the vehicle, the owner of the vehicle may bring an action to recover the greater of $2,000 or twice the value of the vehicle, up to $20,000, and attorney fees. The owner of the vehicle may also obtain relief in order to regain title to the vehicle, if the person who wrongly asserted the possessory lien changed the title.

Privacy: SB 1551 adds a requirement that notice of a breach of security must be made no later than 45 days after discovering or receiving notification of the breach, unless law enforcement requests a delay in providing notice.  If a person offers free credit monitoring or identity theft prevention and mitigation services when it provides notice of a breach, it cannot require a consumer to provide a credit or debit card number or to agree to enroll in paid services.  If the person offers paid credit monitoring services or identity theft prevention and mitigation services, it must disclose that those services require payment of a fee.  Additionally, a consumer reporting agency may not charge a fee for placing, temporarily lifting or removing a security freeze; creating or deleting a protective record; placing or removing a security freeze on a protective record; or replacing a lost PIN or password.  The bill also amends the safe harbor provisions in ORS 646A.622(2) for what constitutes reasonable safeguards to protect personal information.  Finally, the bill cleans up non-substantive edits made by Legislative Counsel in the prior legislative session.  The bill takes effect on June 2, 2018.

Net Neutrality: HB 4155 prohibits government agencies from contracting with a broadband Internet access service provider that favors some Internet traffic over others; blocks lawful content or devices; throttles some Internet traffic to either discriminate against that traffic or to favor other traffic; or unreasonably interferes with the end user’s access to lawful content or ability to use a device.  The bill provides exceptions if the Internet access service provider: is the only provider in a particular geographic location or Public Utility Commission of Oregon (PUC) permits the contract; is addressing copyright infringement, unlawful activity, or the needs of emergency communications or law enforcement; is favoring Internet traffic that the PUC has determined provides significant public interest benefits; or engages in activities determined by the PUC to be reasonable network management.

There are also several work groups that have formed or will form to discuss potential legislation for the 2019 session concerning: (1) Autonomous Vehicles; (2) additional amendments to the Oregon Consumer Identity Theft Protection Act; and (3) motor vehicles, including consigned vehicles, a dealer trust fund to supplement the dealer bond, and disposal of abandoned RVs.

By Matthew Kirkpatrick, Kirkpatrick Law, LLC

2018 has started with a bang at the Consumer Financial Protection Bureau (CFPB).  Congress created the CFPB in 2010 as part of the Dodd-Frank financial reforms in response to the 2008 financial crisis.  The agency’s purpose is to ensure “that, with respect to consumer financial products and services—

(1)  consumers are provided with timely and understandable information to make responsible decisions about financial transactions;

(2)  consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;

(3)   outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;

(4)  Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and

(5)   markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.”

12 U.S.C. § 5511(b).

President Obama nominated and the Senate confirmed Richard Cordray to a 5-year term as the CFPB’s initial Director in a 66–34 vote on July 16, 2013.  Under Cordray, the CFPB actively engaged in rulemaking and enforced laws protecting protect American consumers, recovering “nearly $12 billion for 29 million consumers in refunds and canceled debts.”[1]

Following President Trump’s inauguration, however, the CFPB found itself in the hot seat.  Former CFPB Director Cordray had long faced criticism from Republican lawmakers who complained that the CFPB’s single-director structure unconstitutionally concentrated too much power in a single, un-elected official who lacked accountability to the executive branch.  Critics also argued that its enforcement of consumer regulations was overzealous, unfair to business, and harmful to the economy.  This article provides an update on the CFPB’s status one year into the Trump presidency.

CFPB Leadership

Cordray resigned November 24, 2017, and appointed his chief of staff, Leandra English, as acting director.  President Trump rejected English’s appointment, however, and appointed Office of Management and Budget Director Mick Mulvaney to serve as the CFPB’s acting director instead.  Mulvaney, a long-time CFPB critic, once called the agency a “joke * * * in a sick, sad kind of way.”[2]  A federal judge denied English’s motion for a temporary restraining order and Mulvaney has acted as the acting director ever since.  Trump has not nominated a permanent director.

CFPB Constitutionality

On January 29, 2018, the D.C. Circuit Court of Appeals ruled 7-3 that the CFPB’s single-director structure is constitutional and that the director cannot be fired without cause.[3]

CFPB Activity

On July 19, 2017, the CFPB issued its final Arbitration Rule that prohibited arbitration provisions in financial contracts from including class action waivers.  Companies have used such waivers to dismiss class action lawsuits and force consumers to bring individual arbitrations, for example, against Wells Fargo Bank for opening unauthorized consumer accounts.[4]

On November 1, 2017, before the Arbitration Rule went into effect, President Trump signed a Congressional Review Act (CRA) resolution repealing the rule and precluding similar rules in the future, after Vice President Mike Pence broke a tie vote on the resolution in the Senate.[5]  More information on the repeal of the Arbitration Rule is available here.

On December 4, 2017, Mulvaney said he “would support the Congress moving forward with the CRA” review of the CFPB’s payday lender rule.[6]  Mulvaney said he did not think the $31,700 he received from payday lenders during his 2015-16 campaign to maintain his South Carolina House seat would influence his position on the rule, “because I am not in elected office anymore.”  Id.

On January 16, 2018, the effective date of the agency’s rule to “stop payday loan debt traps by requiring lenders to take steps to make sure people can repay their loans[,]”[7] the agency said it was reconsidering implementation of the rule and would “entertain waiver requests from any potential applicant.”[8]

On January 17, 2018, the agency announced a formal evaluation “to ensure the Bureau is fulfilling its proper and appropriate functions to best protect consumers.”[9]  The first request for information seeks input on how the agency demands information from businesses.  Id.

On January 18, 2018, the CFPB dismissed a lawsuit against four online payday lenders for failing to disclose annual interest rates as high as 950%.[10]  More information on the now-dismissed lawsuit is available here.

On January 24, 2018, the CFPB closed its nearly four-year investigation into South Carolina payday lender World Acceptance Corporation, which has given Mulvaney at least $4,500 in campaign donations.[11]

On February 5, 2018, the CFPB reportedly pulled back from its investigation into the Equifax data breach that affected 143 million Americans.[12]

[1] https://www.nytimes.com/2017/08/31/business/consumer-financial-protection-bureau.html.

[2] https://www.youtube.com/watch?v=RaVeNafdyVA.

[3] https://www.politico.com/story/2018/01/31/consumer-financial-protection-bureau-court-ruling-380226.

[4] https://www.usatoday.com/story/money/2016/11/25/wells-fargo-seeks-arbitration-scores-customers/94419028/.

[5] https://www.federalregister.gov/documents/2017/11/22/2017-25324/arbitration-agreements.

[6] https://www.usatoday.com/story/money/2017/12/04/mick-mulvaney-payday-lending-campaign-contributions-pose-no-conflicts-interest/920056001/.

[7] https://www.consumerfinance.gov/payday-rule/.

[8] https://www.consumerfinance.gov/about-us/newsroom/cfpb-statement-payday-rule/.

[9] https://www.consumerfinance.gov/about-us/newsroom/acting-director-mulvaney-announces-call-evidence-regarding-consumer-financial-protection-bureau-functions/.

[10] https://www.bloomberg.com/news/articles/2018-01-18/trump-led-cfpb-signals-shift-by-dropping-payday-lender-lawsuit.

[11] http://www.ibtimes.com/political-capital/cfpb-drops-investigation-payday-lender-contributed-mick-mulvaneys-campaigns.

[12] https://www.reuters.com/article/us-usa-equifax-cfpb/exclusive-u-s-consumer-protection-official-puts-equifax-probe-on-ice-sources-idUSKBN1FP0IZ.

By Michael Fuller

On January 23, 2018, a divided panel of the U.S. Ninth Circuit Court of Appeals issued an opinion that may present difficulties for parties hoping to certify national class action settlements in the future.

The opinion, in In re Hyundai and Kia Fuel Economy Litigation, held that where plaintiffs bring a nationwide class action, Federal Rule of Civil Procedure 23(b)(3) requires courts to consider the impact of potentially varying state laws.

The opinion involved consumer complaints about misstatements made by Hyundai and Kia about the fuel efficiency of their vehicles. After the district court certified a $395 million settlement among the parties, a group of objectors filed an appeal to the Ninth Circuit. The objectors argued (among other things) that the district court erroneously failed to consider variations in each applicable state’s consumer protection laws.

Under Rule 23(a), a class action may proceed only if

“(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”

The Ninth Circuit ruled that after Rule 23(a)’s prerequisites are met, plaintiffs seeking class certification must then satisfy Rule 23(b)(3), which says that “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy[.]”

The panel reasoned that while variations “in state law do not necessarily preclude a 23(b)(3) action,” “a court must consider the impact of potentially varying state laws.” The panel cited to a 2012 Ninth Circuit opinion called Mazza v. Am. Honda Motor Co., which laid out several steps district courts must follow to determine whether predominance is defeated by variations in state law under rule 23(b)(3).

Under Mazza v. Am. Honda Motor Co., plaintiffs must first establish that the forum state’s consumer protection laws may be constitutionally applied to the claims of the nationwide class. Then courts must use the forum state’s choice of law rules to decide whether to use the forum state’s consumer protection laws, or whether to use the laws of multiple states to decide the claims at issue. If courts ultimately decide that class claims “will require adjudication under the laws of multiple states,” they must then “determine whether common questions will predominate over individual issues and whether litigation of a nationwide class may be managed fairly and efficiently.”

​​The Hyundai opinion made no decision about whether or not to ultimately approve the parties’ proposed settlement under Rule 23(b)(3). Instead, the district court’s class certification was vacated, and the case was remanded for further proceedings consistent with the panel’s ruling.

 

By: Jordan Roberts

Eblen Freed PC

Dealers’ speak.  Trade talk.  Sellers’ statements.  Puffing.  It goes by many names but the boundaries can be hard to define.

Most often, consumer attorneys will come up against the concept of puffing in the context of a fraud or warranty claim.  Did the seller make a warranty about the condition of the product?  Did the seller make a misrepresentation about the condition of a product?  Did the purchaser have a right to rely on the seller’s misrepresentations?  These are the questions that often must be answered.

“General words of commendation such as ‘good’, ‘high-class’, and ‘okeh’ are regarded, without more appearing, as mere seller’s talk and expressions of personal judgment.  Stovall v. Newell, 158 Or 206, 208-209 (1938).  “As to such matters the plaintiff could observe and judge as well as the defendant.”  Id. at 208.

“A purchaser must use reasonable care for his own protection and cannot rely blindly upon the seller’s statements but must make use of his means of knowledge and failing to do so, cannot claim that he was misled.”  Miller v. Protrka, 193 Or 585, 598 (1952).

“The rule is well settled that mere general commendations of property which are the subjects of sale, sometimes called ‘trade talk,’ ‘dealers’ talk,’ ‘sellers’ statements’ or ‘puffing,’ do not attain the status of fraudulent representations where the parties deal at arm’s length.” Id. at 597.

The rule established in Miller was later clarified to mean that “a knowledgeable buyer was not entitled to treat mere ‘puffing’ or ‘dealers talk’ as a representation of fact.”  Bodenhamer v. Patterson, 278 Or 367, 374 (1977).

As such, when we deal with true “puffing,” we do not get into questions of whether the purchaser had a right to rely on the misrepresentation because, by definition, puffing is not a misrepresentation of fact.  But when does puffing cross over from being opinion to being a representation of fact?

Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion, as for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false.  Holland v. Lentz 239 Or 332, 344 (1964).

““This rule is based on the universal practice of the seller to recommend the article or thing offered for sale and to employ more or less extravagant language in connection therewith.  The law does not hold him to a strict accountability for those vague commendation of his ware which manifestly are open to difference of opinion, and which do not imply untrue assertions concerning matters of direct observation; nor has the buyer any right to rely on such statements.””  Id. quoting 12 RCL 250-251, Fraud and Deceit §18.

““The reason of the rule lies, we think, in this: There are some kinds of talk which no sensible man takes seriously, and if he does he suffers from his credulity.  If we were all scrupulously honest, it would not be so; but, as it is, neither party usually believes what the seller says about his own opinions, and each knows it.””  Id. at 344-345 quoting Vulcan Metals Co., v. Simmons Mfg. Co. 248 F 853, 856 (2d Cir 1918).

“It is recognized, however, that statements of opinion regarding quality, value, or the like, may be considered as misrepresentations of that, that is, of the speaker’s state of mind, if a fiduciary relation exists between the parties as, for example, representations of value made by a real estate prober to his principal, or where the parties are not on an equal footing and do not have equal knowledge or means of knowledge.”  Id. at 345.

“The rule is well settled that mere general commendations of property which are the subjects of sale sometimes called ‘trade talk,’ ‘dealer’s talk,’ ‘seller’s statements’ or ‘puffing,’ do not attain the status of fraudulent representations where the parties deal at arm’s length, as here***such statements usually are regarded as mere expressions of opinion upon which a purchaser cannot safely rely***This is especially true when the prospective buyers have or can obtain equal means of information and are equally qualified to judge certain factors claimed to contribute to the value of the property offered for sale.  To such statements the maxim of caveat emptor applies.”  Coy v. Starling, 53 Or App 76, 81 (1981) (internal quotations omitted).

These cases illustrate a general guiding principal of “buyer beware” whenever the parties are on relatively equal footing and have equal access to information and there is no fiduciary duty on the part of the seller.  However, in many consumer transactions the “equal footing” doesn’t actually exist.  In those cases, a court may be more likely to find a statement to be a statement of “fact” rather than an “opinion.”

See, for example, Taylor v. Nielsen, 31 Or App 663 (1977), where the defendant sold a used motorcycle to a consumer.  The seller made the representations that the motorcycle engine was “in fine running condition” and that “the cylinders on it were bored .030 over standard size.”  The Court of Appeals upheld a verdict for plaintiff on his fraud claim saying that the statements “were found to not be mere ‘sellers’ puffing’ since the evidence showed defendant had assembled the engine and appeared to have the expertise to know that the engine was not ‘in fine running condition.’”  Id. at 667.

“Thus, notwithstanding some ostensible tensions, Oregon case law adheres to a consistent principle: reliance in fact must be reasonable, but such reasonableness is measured in the totality of the parties’ circumstances and conduct. For example, if there is a naive and unsophisticated plaintiff on one side of the equation and an unscrupulous defendant who made active misrepresentations of fact on the other, a court might well conclude that, although a more sophisticated party would not have taken at face value the false representations of the defendant, that particular plaintiff was justified in doing so. In contrast, if a party is a large and sophisticated organization that has at its disposal a small army of attorneys, accountants, and hired experts to evaluate a business deal, that party, like the plaintiff in Coy, probably “ha[s] or can obtain equal means of information and [is] equally qualified to judge” the merits of a business proposition, thus making reliance on misstatements by another party unjustified.” OPERB v. Simat, 191 Or App 408 (2004) citing Coy, supra.

Ultimately, whether or not a representation will be deemed an “opinion” or a “statement of fact” that could give rise to liability is an intensely fact-based question that will vary case-by-case and will depend on a number of factors including the sophistication of the parties and whether a misrepresentation was made knowingly or negligently.  Understanding this can help an attorney navigate a potential fraud case starting with the very first client intake meeting.