Author Archives: Michael Fuller

About Michael Fuller

Michael Fuller is a partner at Olsen Daines in Portland, Oregon and a consumer law adjunct professor at Lewis & Clark Law School.

Oregon Lawyer Michael Fuller

Fired Portland banker files whistleblower case against US Bank

Yesterday an Oregon banker filed a complaint against US Bank for whistleblower retaliation. Read the lawsuit.

Oregon Whistleblower

The banker, Paul Rodriguez, says US Bank supervisors wrongfully fired him after he reported a credit rating scandal to the government.

Oregon law protects employees from being fired for reporting illegal corporate behavior.

Whistleblower Portland

Prior to reporting US Bank to the government, Rodriguez managed a $1.2 billion banking portfolio in Portland.

According to the lawsuit, Rodriguez blew the whistle against US Bank after it gave a false credit rating to a California school district. When the district later defaulted on its loan to the bank, Rodriguez refused requests to keep quiet.

Whistleblower Complaint

Rodriguez says a bank supervisor tried to intimidate him when the bank learned he had an upcoming interview with a federal investigator. Rodriguez says the supervisor claimed to be “friends” with the investigator Rodriguez was set to meet in January 2015.

Multnomah County Case No. 17CV07898

Written by Oregon Lawyer Michael Fuller.

FDCPA statute of limitations discovery rule appeal

Consumer wins FDCPA statute of limitations discovery rule appeal

By Michael Fuller

Yesterday, the Ninth Circuit Court of Appeals decided a dispute over the statute of limitations defense under the Fair Debt Collection Practices Act (FDCPA).

Read the full opinion in Lyons v Michael & Associates.

The facts of the case were straightforward: in 2011 a debt collector sued a consumer in a wrong judicial district, in violation of the FDCPA. In 2013, the consumer filed an FDCPA complaint against the collector. The FDCPA complaint was filed more than a year after the collector filed its suit, but less than a year after the consumer was served with the suit.

FDCPA Statute of Limitations

At trial, the collector raised the statute of limitations defense. The statute of limitations generally requires consumers to file FDCPA complaints against collectors within a year after the law was violated.

On appeal, the Ninth Circuit Court of Appeals held that the discovery rule applies to the FDCPA statute of limitations defense.

The Discovery Rule

Under the discovery rule, the statute of limitations does not begin to run until a consumer knows or has reason to know that a violation occurred. Because the consumer was first served with the collector’s suit within a year before she filed her FDCPA complaint, the collector’s statute of limitations defense failed.

Consumer Attorneys Should Consider Benefits of ORCP 39C(6) Depositions

By Jordan Roberts, Roberts Law Group PC

Many consumer-related disputes involve actions by an individual against a corporation or limited liability company. This provides an opportunity for attorneys representing the consumer to notice and take an entity deposition pursuant to ORCP 39C(6). Some attorneys, however, fail to understand the obligations that a 39C(6) deposition creates both for the individual’s attorney, and especially for the corporation. When used properly, a 39C(6) deposition can provide a more efficient way of information gathering for the consumer, and may even bind a corporation and prevent it from presenting certain evidence at trial if the corporation does not adequately prepare the designee being deposed.

As of the writing of this article there are no Oregon Court of Appeals or Oregon Supreme Court cases interpreting ORCP39C(6). There are, however, a number of cases interpreting FRCP 30(b)(6), the virtually identical federal counterpart to ORCP 39C(6), and those cases can offer guidance to practitioners.

Under ORCP 39C(6) a party may, in the notice and in a subpoena, name as the deponent “a public or private corporation or a partnership or association or governmental agency.” The party giving notice to the corporation to be deposed must also “describe with reasonable particularly the matters on which examination is requested.”

Giving the required notice and description then triggers the duty of the corporation to designate one or more “officers, directors, managing agents, or other persons who consent to testify on its behalf.” The person so designated “shall testify as to matters known or reasonably available to the organization.”

This differs from your typical deposition in that 1) the corporation chooses who will appear at the deposition, and 2) the deposing party must let the corporation know before the deposition what the topics of inquiry will be. In exchange for these advantages, the corporation must testify to facts and opinions beyond the personal knowledge of the person designated. They must testify to all matters “known or reasonably available to the organization,” which in the case of a corporation can be quite broad.

The designee is not giving her own opinion or testimony. Instead, the designated witness is “speaking for the corporation and this testimony must be distinguished from a mere corporate employee whose deposition is not considered that of the corporation.” United States v. Taylor, 166 FRD 356 (MDNC 1996). “If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.” Id. This means that, even if a corporation has fired the employee(s) with personal knowledge of the situation it must actively attempt to acquire its past employee(s)’ knowledge so long as it is “reasonably available.” In addition to testifying about objective facts, the designee must also testify about the corporation’s subjective beliefs and its interpretation of documents and events. Id. at 361.

Like an individual, the corporation may testify that it “does not remember” or that it “has no position” with regards to a certain fact set or area of inquiry. However, “if a party states it has no knowledge or position as to a set of alleged facts or area of inquiry at a Rule 30(b)(6) deposition, it cannot argue for a contrary position at trial without introducing evidence explaining the reasons for the change.” Id. at 363. As such, the entity deposition can serve to “bind” the corporation to the testimony of its designee. If the corporation does not spend the necessary time to prepare its designee or to seek out information that is reasonably available to it at the time of the deposition, it may not then introduce that information at trial. Note however, that while many courts consider the testimony of the designee “binding,” other jurisdictions take a more lenient approach and allow additional evidence at trial that may explain or contradict the designee’s testimony. See, e.g., In re Puerto Rico Elec Power Auth., 687 F2d 501 (1st Cir 1982). As no Oregon case has ruled on this issue yet it is unclear which path Oregon will take.

As a practical matter, this means that every attorney taking a 39C(6) deposition should spend time asking questions that relate to the time spent preparing for the deposition including the names of any other persons the designee spoke to and efforts the designee made to contact those with the information. The designee’s responses regarding his or her preparation may prevent the corporation from offering conflicting evidence at a later time. If the designee made no attempt to contact those with the relevant information the corporation may open itself up to motions for discovery sanctions pursuant to ORCP 46D because producing an unprepared witness is tantamount to failing to appear. See, e.g., Starlight International Inc. v. Herlihy, 186 FRD 626 (D Kan 1999); United States v. Taylor, 166 FRD 356 (MDNC 1996); In re: Vitamins Antitrust Litigation, 216 FRD 168 (2003); Harris v. State of New Jersey, 2007 US Dist LEXIS 61457 (DNJ 2007). On the other hand, if the designee attempted to contact the past employee but could not because the employee had moved, changed phone numbers, or was simply refusing to work with the designee, then the corporation has likely met its burden of preparation because that employee’s knowledge was not “reasonably available.”

Although entity depositions require the attorney taking the deposition to spend additional time preparing the areas of inquiry and preparing for the deposition well in advance, one of the added benefits for consumers is that entity depositions can serve to reduce the overall number of depositions that the consumer’s attorney needs to prepare for. For example, instead of deposing each employee individually, the attorney can craft a topic of inquiry that would cover all necessary material then prepare for only a single deposition. In addition, facts that are known by the corporation cannot be shielded from the deposing side under the guise of attorney client privilege or work product. “No contention can be made that the attorney-client privilege precludes disclosures of factual information. The privilege does not protect facts communicated to an attorney. Clients cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources.” Protective Nat’l Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 FRD 267 FRD 267, 278-279 (D Neb 1989).

Using an entity deposition instead of individual depositions forces corporations to provide designee(s) that have knowledge about the noticed topics. It prevents a multitude of corporate employees from disclaiming any knowledge when it is clear that someone in the corporation has relevant information. For that reason it can be particularly helpful for consumers in dealing with companies with high employee turnover such as used car lots, or collection agencies. It prevents trial by ambush by forcing corporations to do its investigations early and provide its interpretation of events. ORCP 39C(6) depositions can also help consumers who often bring cases on a limited budget. While the attorneys on both sides must do more work to prepare for and take a 39C(6) deposition it is possible to cover in a single deposition with a single court reporter fee, a wide range of issues that might otherwise require multiple depositions, multiple court reporters, and multiple transcripts.

As one judge succinctly explained: “the burden upon the responding party, to prepare a knowledgeable Rule 30(b)(6) witness, may be an onerous one, but we are not aware of any less onerous means of assuring that the position of a corporation that is involved in litigation, can be fully and fairly explored.” Prokosch v. Catalina Lightning, Inc., 193 FRD 633, 638 (D Minn 2000).

When appropriate, consumers and their attorneys would be wise to take advantage of the benefits of using an entity deposition rather than a multitude of individual depositions.

New Rent Protections Help Residential Tenants

In an effort to aid tenants facing increases in rent, the Oregon legislature recently passed HB 4143, which was signed into law on March 15, 2016, by Governor Kate Brown. HB 4143 amends the Oregon Residential Landlord Tenant Act (ORLTA) and provides new rent protections for residential tenants starting April 14, 2016.

For tenants in month-to-month tenancies, landlords are now prohibited from raising rent within the first year of the tenancy and must now provide notice at least 90 days before raising rent after that first year of occupancy. The ORLTA had previously required landlords to give notice at least 30 days before increasing rent. For tenants in a week-to-week tenancy, the law now requires landlords to provide at least 7 days notice before rent is increased.

Oregon’s most populous city, Portland, also recently passed additional tenant protections, which are aimed at slowing no-cause evictions that have risen with the increase in property values.  Portland City Code 30.01.085 prohibits a landlord from terminating a tenancy “without cause” unless the landlord has provided the tenant with at least 90 days’ written notice of the termination, or the end of rental agreement, whichever is longer.

A Portland landlord is also prohibited from increasing rent by 5 percent or more over a 12-month period unless the landlord gives written notice at least 90 days before the effective date of the rent increase. Landlords that fail to comply with Portland’s new requirements are liable to the tenant for an amount up to three months rent, as well as actual damages, reasonable attorney fees and costs.

Written by Portland attorney David Venables.

National Consumer Protection Week!


View the main website for National Consumer Protection Week:

View a list of the Oregon Department of Justice’s Top 10 consumer complaints from 2015:

  1. Imposter Scam Calls (2,357 complaints)
  2. Telecommunications (824 complaints)
  3. Motor Vehicle Sales (554 complaints)
  4. Financial Services (509 complaints)
  5. Magazine Subscriptions (461 complaints)
  6. Health Related (395 complaints)
  7. Auto Repair (355 complaints)
  8. International Money Transfer Schemes (308 complaints)
  9. Home Ownership Issues (304 complaints)
  10. Collection Agencies (281 complaints)

Consumer Can Enforce Bankruptcy Discharge Under FDCPA, Second Circuit Rules

Today the Second Circuit Court of Appeals ruled that consumers can enforce bankruptcy discharge orders in small claims courts under the FDCPA.

Read the full Second Circuit opinion in Garfield v. Ocwen.

The Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (“FDCPA”) generally makes it illegal for a collector to call a consumer to collect a debt the consumer doesn’t owe.

Most states allow consumers to stop collection calls after bankruptcy simply by filing a small claims court complaint under the FDCPA.

Stopping Calls and Fixing Credit After Bankruptcy

The Second Circuit’s ruling applies to consumers in New York, Connecticut, and Vermont.

Read the Seventh Circuit’s opinion in Randolph v. IMBS, which allows consumers in Illinois, Indiana, and Wisconsin to enforce the bankruptcy discharge under the FDCPA.

Read the Third Circuit’s opinion in Simon v. FIA Card Services, which allows consumers in New Jersey, Pennsylvania, and Delaware to enforce the bankruptcy discharge under the FDCPA.

Unfortunately for consumers in the Ninth Circuit (which includes Oregon, Washington, and California), stopping calls after bankruptcy almost always means hiring attorneys to re-open their bankruptcy cases.

Read the Ninth Circuit’s opinion in Walls v. Wells Fargo, which requires consumers on the West Coast to enforce their discharges by filing motions for contempt in bankruptcy court.​

Consumer Reporting Fairness Act

In July 2015 Oregon Senator Jeff Merkley co-sponsored a bill that would essentially overrule Walls v. Wells Fargo, at least in the post-bankruptcy credit reporting context. The bill (Senate Bill 1773) titled the Consumer Reporting Fairness Act remains pending in the Senate Judiciary Committee.

Michael Fuller is a partner at Olsen Daines in Portland, Oregon and an adjunct professor of consumer law at Lewis & Clark Law School.

The Limits of Waiver in a Consumer Transaction

By Jordan Roberts

Over the past few years, our office has dealt with a number of “bad used car” cases where a dealer sells a vehicle that breaks down shortly after the sale, or that won’t pass DEQ, or where a dealership has made false or misleading claims to the client in order to facilitate the sale. On occasion, we have run into the following situation: a potential client comes to us and, after an initial evaluation of the facts, we learn that the client has already signed a waiver and / or release of any potential claims. The waiver may take the following form: “in exchange for [small payment amount or token services provided by seller], consumer releases seller from any and all actions, causes of actions, claims, known or unknown, etc., including any alleged violations of the unlawful trade practices act, the truth-in-lending act, unlawful debt collections, the Magnuson-Moss warranty act…” The list can go on and on.

The question then becomes: did the potential client truly sign away all potential claims and would we be risking a motion for summary judgment by filing a new case? The true answer, of course, depends on the particular facts involved. However, consumer attorneys should look hard at the circumstances surrounding the purported waiver. In the context of consumer rights and protections granted by statute, the waiver may very well be unenforceable.

Waiver, in Oregon, is “the intentional relinquishment of a known right.” Waterway Terminals Company v. P.S. Lord Mechanical Contractors, 242 Or 1, 26 (1965). “It is a truism that a contract validly made between competent parties is not to be set aside lightly. When two or more persons competent for that purpose, upon a sufficient consideration, voluntarily agree to do or not to do a particular thing which may be lawfully done or omitted, they should be held to the consequences of their bargain. The right to contract privately is part of the liberty of citizenship, and an important office of the courts is to enforce contractual rights and obligations. As this court has stated, however, contract rights are [not] absolute; …equally fundamental with the private right is that of the public to regulate it in the common interest.” Bagley v. Mt. Bachelor, Inc., 356 Or 543, 551 (2014) (internal citations omitted).

“Statutory rights may be waived, but only to the extent that they serve no broader public policy but are directed solely to the protection of the individual who purports to waive them.” In re Leisure, 334 Or 244, 253 (2003) (emphasis added). “[W]aiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured and a right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.” Clark v. Capital Credit & Collection Services, 460 F3d 1162, 1170 (9th Cir 2006) quoting New York v. Hill, 528 US 110, 116 (2000). Put more simply: “[w]here legislation is intended to secure general objectives of public policy as well as to protect the interests of individuals, it may not be circumvented by private agreement.” McKinney v. Employment Division, 21 Or App 730, 737 (1975). See also: Welker v. Teacher Standards and Practices Commission, 152 Or App 190, 197 (1998) citing Turney v. J.H. Tillman Co., 112 Or 122, 132, (1924).

When confronted with a potential waiver, it is important to look to the impact on the individual consumer, but it is equally important to look to the underlying policy concerns behind the statute. Consumers do not have to show a specific injury to the public in a specific instance in order to invoke the public policy concerns and void contract term. “In determining whether an agreement is illegal because it is contrary to public policy, ‘[t]he test is the evil tendency of the contract and not its actual injury to the public in a particular instance.’” Bagley v. Mt. Bachelor, Inc., 356 Or 543, 552 (2014) quoting Pyle v. Kernan, 148 Or 666, 673-674 (1934). However, it is also important to examine the specific circumstances of each individual waiver because waivers often are enforced “only if the waiver was ‘knowing’ or ‘intelligent,’ which means the individual has ‘sufficient awareness of the relevant circumstances and likely consequences’ of his decision. Clark v. Capital Credit & Collection Services, 460 F3d 1162, 1171 (9th Cir 2006) quoting Brady v. United States, 397 US 742, 748 (1970). As such, a waiver or release of claims that is negotiated by two attorneys on behalf of their respective clients is more likely to be enforceable than a take-it-or-leave-it waiver signed by a consumer as part of a transaction with little or no explanation.

In the most recent case addressing whether an anticipatory release is valid, the court summarized the law as follows: “We glean from those decisions that relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the release was conspicuous and unambiguous; whether there was a substantial disparity in the parties’ bargaining power; whether the contract was offered on a take-it-or-leave-it basis; and whether the contract involved a consumer transaction. Relevant substantive considerations include whether enforcement of the release would cause a harsh or inequitable result to befall the releasing party; whether the releasee serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence. Nothing in our previous decisions suggests that any single factor takes precedence over the others or that the listed factors are exclusive. Rather, they indicate that a determination whether enforcement of an anticipatory release would violate public policy or be unconscionable must be based on the totality of the circumstances of a particular transaction. The analysis in that regard is guided, but not limited, by the factors that this court previously has identified; it is also informed by any other considerations that may be relevant, including societal expectations.” Bagley v. Mt. Bachelor, Inc., 356 Or 543, 560 (2014).

When a potential client has signed a waiver or release of claims, the inquiry into the facts should dive deeper to see whether such waiver is valid and enforceable. In the context of consumer transactions, as opposed to an arms-length business transaction, or a settlement negotiation involving experienced lawyers on both sides, the answer may very well be that it is not.

Jordan Roberts is a partner at the Roberts Law Group PC.

Ninth Circuit Overrules Controversial Bankruptcy Opinion

Written by Michael Fuller


Today, the Ninth Circuit Court of Appeals ruled that consumers in bankruptcy may seek reimbursement for the fees they incur recovering damages caused by automatic stay violations.

The court’s en banc opinion, In re Schwartz-Tallard, overruled a controversial 2010 case, Sternberg v. Johnston, which expressly prohibited courts from awarding fees to recover damages under § 362(k) of the Bankruptcy Code.

See related post: Payday Lender Liable for Expenses Incurred Prosecuting its Bankruptcy Violation


In Schwartz-Tallard, a debtor sued her mortgage company after it wrongfully foreclosed on her home during bankruptcy. The mortgage company denied all liability but lost in bankruptcy court and on appeal. Due to Sternberg’s holding, Schwartz-Tallard could not recover the fees she incurred defending the bankruptcy court’s ruling on appeal.

Today’s opinion expressly overruled Sternberg. The en banc court reasoned that Sternberg’s holding undercut Congressional intent to “encourage injured debtors to bring suit to vindicate their statutory right to the automatic stay’s protection…” The opinion recognized that the purpose of the automatic stay’s remedial scheme was to deter violations and provide redress for those that do occur. The court cited a brief filed by the National Association of Consumer Bankruptcy Attorneys showing that under Sternberg’s holding, “in many cases the actual damages suffered by the injured debtor will be too small to justify the expense of litigation, even if the debtor can afford to hire counsel.”

Michael Fuller is a partner at Olsen Daines and a consumer law adjunct professor at Lewis & Clark Law School.

Ninth Circuit Allows Homeowners to Void Mortgage in ‘Chapter 20’ Bankruptcy

By Michael Fuller

Yesterday, a Ninth Circuit Court of Appeals panel opinion ruled that consumers may be able to permanently void mortgage liens in so-called ‘Chapter 20’ bankruptcy cases. Read the full opinion.

The term ‘chapter 20’ means a consumer who files chapter 13 bankruptcy within four years after receiving a discharge of debts in chapter 7 bankruptcy.

The opinion, In re Blendheim, followed similar holdings by the Fourth and Eleventh Circuits. See related post: 9th Cir. BAP Allows Lien Strip in Chapter 20 Bankruptcy


In 2007, the Blendheims filed a straight liquidation Chapter 7 bankruptcy to wipe out their unsecured debts. The day after receiving their Chapter 7 discharge, the Blendheims filed a second bankruptcy case under Chapter 13, in hopes of restructuring mortgages on their condo in West Seattle. The condo was worth about $450,000 and the couple owed $347,900 on their first mortgage and $90,474 on their second mortgage.

The first mortgage holder, HSBC, filed a proof of claim but failed to attach a copy of the promissory note, as required by the bankruptcy rules. The Blendheims objected, and the bankruptcy court, having heard no response from HSBC, disallowed the claim.

The Blendheims later sought an order voiding their first mortgage lien, under the theory that HSBC’s disallowed claim permitted the court to eliminate HSBC’s state-law right of foreclosure. The bankruptcy court agreed with the Blendheims, and HSBC appealed. See related post: 11th Circuit Allows Second Mortgage “Strip Off” in Chapter 20


HSBC argued on appeal that the bankruptcy court could not void its first mortgage lien because the Blendheims were not eligible for discharge under Chapter 13. HSBC also raised due process issues and argued that the Blendheims’ plan was filed in bad faith.

The appellate panel held that the Blendheims could permanently void HSBC’s mortgage lien upon completion of their chapter 13 plan, whether or not they were entitled to a discharge. The court reasoned that the language of § 506 simply did not impose a discharge requirement on a debtor’s ability to void a lien.

The panel also held that the Blendheims’ plan was filed in good faith, based on their valid reorganizational goals and lack of egregious behavior. The panel acknowledged that successive bankruptcy filings did not constitute bad faith per se.

Michael Fuller is a partner at Olsen Daines in Portland, Oregon and a consumer law adjunct professor at Lewis & Clark Law School.

Oregon District Court Reverses Groundbreaking Bankruptcy Opinion

By Michael Fuller, The Underdog Lawyer ®

Last October, an Oregon bankruptcy court became the first in the country to require a senior lien holder to accept title to a home surrendered in chapter 13.


The case, In re Watt, gave hope to families across the country that remained obligated to pay HOA dues, even after moving out of their underwater homes.

See related post: Judge Orders Mortgage Company to Accept Title to Surrendered Home

Last week, Oregon’s chief district court judge reversed the Watt opinion in favor of the lien holder, Bank of New York Mellon.

The bank had appealed the bankruptcy judge’s decision, arguing that the court erred in confirming the Watt family’s chapter 13 plan.

The district court judge agreed, reasoning that the bankruptcy court, “read language into the Bankruptcy Code that does not exist, as well as frustrated the purpose of the statute, which is to provide protection to creditors holding allowed secured claims.”

“With all due respect to the district court opinion, we think the judge got it wrong,” says bankruptcy lawyer Michael D. O’Brien, who represents the Watt family.

The Watt family is considering options to appeal.

About the author: Michael Fuller is a partner at OlsenDaines, P.C. in Portland, Oregon and an adjunct consumer law professor at Lewis & Clark Law School.