Ninth Circuit Court of Appeals Determines that a Borrower Does Not Need to Tender Before Suit or Allege Ability to Tender in Complaint for a Viable Rescission Claim under TILA
In Merritt v. Countrywide Financial Corp. et al, the Ninth Circuit reversed a district court’s dismissal of the plaintiffs’ TILA rescission claim for failure either to tender the rescindable value of their loan prior to filing suit or to allege ability to tender its value in their complaint. Declining to extend Yamamoto v. Bank of New York, 329 F.3d 1167 (9th Cir. 2003), the panel held that an allegation of tender or ability to tender is not required. The panel held that only at the summary judgment stage may a court order the statutory sequence altered and require tender before rescission, and then only on a case-by-case basis, once the creditor has established a potentially viable defense.
A number of bills passed in the 2013 legislative session that may impact your practice or your consumer clients. Many of these bills do not have a private right of action; however, you may still want to be aware of these changes when you are giving clients advice or screening potential clients. Of course, since you’re also a consumer, you may want to know about these changes for your “real life” away from the office.
I briefly summarize the bills in three categories: (1) changes to the Unlawful Trade Practices Act, (2) bills related to foreclosure or mortgages and (3) other consumer protection-related bills. The effective date for all of the bills is January 1, 2014 unless otherwise noted. To view the full text of any bill, go to https://olis.leg.state.or.us/.
Unlawful Trade Practices Act
HB 2059 – adds consignment sales to ORS 698.640, a violation of which is a violation of ORS 646.608(1)(v). Adds a new requirement regarding the return of unsold property.
HB 2573 – adds a violation to ORS 646.608 of acting as an immigration consultant for compensation. Exceptions for authorization under federal law and attorneys.
HB 2824 – amends ORS 98.854 pertaining to non-preference tows, a violation of which is a violation of ORS 646.608(1)(ddd). Provides that a tower may tow a vehicle if the vehicle violates a prominently posted no parking sign that warns that parking is prohibited 24 hours a day.
HB 3070 – requires disclosure of shipping and handling charges during a sales transaction. Added to ORS 646.607; no private right of action.
HB 3467A – adds a violation to ORS 646.608. If a person operates a website that posts mug shots and charges a fee to remove the mug shot, the person must take down the mug shot and personal information related to the mug shot for free within 30 days if it receives a written request that contains documentation that all charges were acquitted, reduced to violations, or were expunged.
HB 3489A – changes licensing exemptions for escrow agents to act as debt management service providers. Relates to a violation of ORS 646.608(1)(kkk). Effective date: July 18, 2013.
SB 558 – expands the foreclosure mediation program (“resolution conference”) enacted under SB 1552 (2012) to include judicial foreclosures. There is no private right of action. Effective date: August 4, 2013.
HB 2528 – amends definition in ORS 86.205 to remove cap on amount in real estate loan agreement that is subject to requirement to pay interest to borrower on funds that lender collects for lender’s security protection provision.
HB 2568 – amends time of and information required in notices of sale in foreclosures. Changes amount of time a trustee may postpone a sale.
HB 2569A – permits law firms to be trustees of trust deeds.
HB 2929B – relates to trustee’s sale of foreclosed property. Permits trustee to rescind sale within 10 days in certain circumstances. Requires trustee to provide notice of rescission within 10 days after the date of sale, specifies contents of notice, and requires trustee to record affidavit regarding notice. Requires trustee to refund purchase price to purchaser within three days after date of notice. Requires trustee to register with the Secretary of State or DCBS.
HB 3389A – limits lender’s ability to reject short sales. Before approving a short sale, a lender may not require a nonprofit that purchases property to enter into an agreement that limits or bars the homeowner from owning or occupying the property. Provides exceptions. Effective date: July 19, 2013.
SB 237 – relates to billing errors for public utilities.
SB 525B – amends the Unlawful Debt Collection Practices Act (ORS 646.639). A debt collector is prohibited from using the seal or letterhead of a public official or public agency. Although not under ORS 646.639, the bill also prohibits public agencies and public officials from allowing a collection agency to use the agency/official’s seal or letterhead and from getting paid by the collection agency to use the seal or letterhead.
SB 574A – allows a representative of an individual under 16 years old who is incapacitated or has a court-appointed guardian or conservator to place a credit freeze on the individual’s consumer report. Effective date: June 13, 2013.
SB 577C – relates to motor vehicle service contracts and protection products.
HB 2346 – amends ORS 646A.588 pertaining to portable electronics insurance policies and consent to receive statutorily required notices and correspondence by e-mail. Effective date: May 13, 2013.
HB 2706 – allows self-storage facilities to charge late fees. Amends notice and sale requirements for liens. Amends liability for motor vehicles, watercraft and trailers.
The common belief of most consumers, and indeed most lawyers, is that when someone buys a used car “as-is” they have given away all right to complain about the future performance of the car. Certainly, many car dealers feel this is the case as “you bought it as-is” is a common refrain for consumers that try to complain after a sale.
Fortunately for consumers, most people, lawyers included, are mistaken.
Because the “lemon law” applies only to new cars, a bad used car case most often falls under the Oregon Unlawful Trade Practices Act, ORS 646.606, et seq.
In the provision most relevant to used car transaction, ORS 646.608(1)(t) makes it a violation for a dealer to fail to affirmatively disclose “any known material defect or material nonconformity.”
Because the UTPA sets up a negligence framework, it is also a violation for a dealer to fail to disclose material nonconformities or defects that the dealer has “negligently disregarded when the dealer or broker should have known, prior to sale or lease of a motor vehicle.” OAR 137-020-0020(o).
So how does the UTPA interact with an “as-is” clause? The good news for consumers is that, essentially, it doesn’t. Despite the fact that most lawyers, and almost every car dealer, will attempt to use the “as-is” clause as a defense at some point in litigation or negotiation, Oregon courts have consistently held that an “as-is” clause does not defeat a UTPA claim.
The issue was first addressed in Hinds v. Paul’s Auto Werkstatt, Inc., 107 Or App 63 (1991).
The seller defendant claimed that because it used a standard “buyer’s guide” with a standard as-is clause pursuant to 16 CFR§455.2 it was protected from a UTPA claim for failure to disclose known material defects. The trial court found for the defendant, stating that the “clear intent” of the buyer’s guide “is to make certain that a buyer purchasing a used car ‘as is’ is aware of the full consequences of the agreement.” Id. at 65 n. 3. However, the Court of Appeals rejected this argument and reversed the trial court, stating that because 16 CFR§455.2 is silent as to “disclosure of known defects” the UTPA requirement that a seller disclose defects that it knew of or should have known of is not affected. Id. at 65.
Additionally, in Parrott v. Carr Chevrolet, Inc. the defendant argued that it was protected by an “as-is” clause and that a broad interpretation of ORS 646.608(1)(t) would “effectively nullify” a car dealer’s ability to use an “as-is” clause. 156 Or App 257, 270 n. 9 (1998), affirmed 331 Or 537 (2001). The court disagreed, stating that an “as-is” clause “calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty” whereas “ORS 646.608(1)(t) addresses the failure to disclose known material defects.” Id. (emphasis added).
Once again, the courts discussed as-is clauses only in the context of “warranties” and refused to extend that language to cover a dealer’s failure to disclose material defects and nonconformities.
While there are plenty of pitfalls and nuances to taking on a bad used car case, the presence of an “as-is” clause should not scare lawyers from investigating further and potentially taking the case.
In the end, an “as-is” clause will not bar recover under a valid UTPA theory.
By David Koen
On February 26, 2014, the Oregon Court of Appeals affirmed without opinion the Multnomah County Circuit Court’s decision in Deutsche Bank National Trust Company, as Trustee for Indymac INDX Mortgage Loan Trust 2005-AR8, Mortgage Pass-Through Certificates Series 2005-AR8 v. Delaney, No. A151655, 261 Or App 477 (2014).
Defendants’ appeal included three assignments of error:
(1) the Circuit Court erred in excluding the pooling and servicing agreement at issue with respect to alleged discrepancies concerning the conveyance of the loan at issue;
(2) the Circuit Court erred in refusing to give effect to an order in another case granting Defendants’ motion to compel discovery; and
(3) the Circuit Court erred in excluding evidence of payments on the loan to plaintiff by certain non-party entities.
On June 1, 2014, consumer bankruptcy filing fees in Oregon and across the country are set to increase.
Click here to view the District of Oregon’s new bankruptcy filing fee schedule. The new Chapter 7 filing fee is $335. The new Chapter 13 filing fee is $310.
Consumers may apply to pay their fee in installments.
Individuals earning less than $1,458 per month (150% of the current poverty line of $972 per month) can apply to waive their filing fee. However, consumers who qualify for the waiver may not even need bankruptcy protection to avoid garnishment.
For example, the first $218 of a consumer’s take-home paycheck each week is exempt and cannot be garnished by creditors.
Low-income consumers may qualify for the free Bankruptcy Clinic, sponsored by the Oregon State Bar’s Debtor-Creditor Section.
To learn more about the clinic, contact its chair, attorney Rich Parker.
Creditors Not Regulated by the FDCPA
The Fair Debt Collection Practices Act (FDCPA) (15 USC § 1592a(6)) doesn’t generally regulate creditors collecting their own accounts. For example, the FDCPA doesn’t prohibit Verizon Wireless from directly harassing a consumer.
However, if Verizon Wireless turns a past-due account over to a third party for collections, the third party debt collector is subject to liability for harassment under the FDCPA.
Exception for Creditors Using “False Names”
Last week, the Second Circuit Court of Appeals held that the FDCPA applies to original creditors who give the false impression they have hired a third party law firm to collect debts.
How the “False Names” Exception Works
- uses a name that falsely implies a third party is involved in collecting its debts,
- pretends to be someone else, or
- uses a pseudonym or alias.
The Money Store’s Law Firm Constituted a “False Name”
How the Loophole is Supposed to Work
‘The Money Store’ services Ms. Vincent’s mortgage.
Why ‘The Money Store’ Fell Under the ‘False Name’ Exception
The Money Store’s letters told homeowners that a law firm had been retained to collect a debt for its client.
However, evidence showed that the threat was hollow; the law firm was simply a mass processor of letters. The Money Store actually maintained possession over its files. The law firm later shut its doors.
The Court reasoned that because the law firm did not engage in actual bona fide debt collection, a jury could find that The Money Store made false implications as to the name of the entity collecting its debts.
What This Means For Homeowners and Mortgage Companies
The opinion should have a positive impact on consumers seeking to hold mortgage companies and law firms accountable for alleged abuses in the foreclosure process, says consumer protection attorney Kelly Jones.
“The Vincent decision is a logical and necessary application of the ‘false name exception.’ A creditor shouldn’t be able to retain its exempt status under the FDCPA when it rents the name or letterhead of a law firm or other debt collector in order to further intimidate consumers and increase its collections rates,” says Jones.
The opinion is binding and must be followed by judges in the Second Circuit (Connecticut, New York, and Vermont). In all other states, the opinion serves as non-binding persuasive authority.
About the Author: Michael Fuller is a Portland trial attorney and chair of the Olsen Daines law firm’s Consumer Protection Group. You can follow him on Google+, Twitter, and visit his blog at www.UnderdogLawBlog.com.