By David Venables

On August 18, 2014, the 9th Cir. Court of Appeals issued its opinion in Nguyen v. Barnes & Noble.  The Plaintiff, Nguyen, filed a lawsuit in California Superior Court on behalf of himself and a putative class of consumers whose HP Touchpad orders had been cancelled, alleging that Barnes & Noble had engaged in deceptive business practices and false advertising in violation of both California and New York law.  Barnes & Noble removed the action to federal court and moved to compel arbitration under the Federal Arbitration Act (“FAA”), arguing that Plaintiff was bound by the arbitration agreement on the Barnes & Noble website’s Terms of Use.  The issue before the 9th Cir. was whether Nguyen, by merely using Barnes & Noble’s website, agreed to be bound by the Terms of Use, even though Nguyen was never prompted to agree to the Terms of Use and never in fact read them.

Held:

•Plaintiff  had insufficient notice of Barnes & Noble’s Terms of Use, and thus did not enter into an agreement with Barnes & Noble to arbitrate his claims.

•There was no evidence that the website user had actual knowledge of the agreement.

•Where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on – without more – is insufficient to give rise to constructive notice

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12-56628.pdf

Ninth Circuit Says Diversity Removal Deadline Is Not Jurisdictional

By Michael Fuller, The Underdog Lawyer ®

By David Venables

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.

By Eva H. Novick

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.

Foreclosure/Mortgage

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.

Other

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.

By Jordan Roberts

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.

By Michael Fuller, The Underdog Lawyer ®

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.

A recent decision by the Seventh Circuit in the consolidated appeals of McMahon v. LVNV Funding, LLC and Delgado v. Capital Management Services, L.P. , suggests that debt collectors need to take heed when collecting on debts for which the limitations period related to the underlying claim has expired. In both cases, the consumer plaintiffs had alleged that specific collection attempts violated various provisions of the Fair Debt Collection Practices Act  (“FDCPA”) (15 U.S.C. § 1692, et seq.). In McMahon, the dunning letter sent to the consumer was an attempt to collect on an alleged utility debt that originated about 14 years prior. In Delgado, the alleged debt was about eight years old. In both cases, the applicable limitations period had long since passed. Perhaps the most notable fact regarding both collection letters is that neither of the letters directly threatened litigation on the time-barred debts, as previous case law already supports FDCPA violations for such conduct (e.g., Herkert v. MRC Receivables Corp., 655 F. Supp. 2D 870 (N.D. Ill 2009). However, favorably citing a Federal Trade Commission Report titled A Broken System: Protecting Consumers In Debt Collection Litigation and Arbitration , the Court reasoned that it’s likely that many consumers do not understand their rights (not to be sued) with regard to time-barred debts, and therefore may be misled into believing that if they do not pay the settlement amount that the debt collector will then initiate litigation. The Court also addressed concerns that in the absence of any explanation that the limitations period has expired, unsophisticated consumers could be coaxed into making even a small payment on the debt, unaware that such a payment may restart the limitations period pursuant to state law. This holding by the Seventh Circuit decision stands in conflict with previous sister circuit court decisions, by the Third Circuit in Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3rd Cir., 2011) and by the Eight Circuit in Freyermuth v. Credit Bureau Services , 248 F.3d 767 (8th Cir., 2001), and is likely to cause some ripples throughout the debt collection industry.

The Author, Kelly D. Jones , is a solo consumer rights attorney located in close-in SE Portland.