By Colin D. A. MacDonald

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

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

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

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

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

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

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

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

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

 

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

On June 1, 2021, Governor Kate Brown signed into law Oregon’s most recent COVID-19 pandemic-related foreclosure moratorium, HB 2009. Although similar to last year’s statewide moratorium that expired at the end of last year, Oregon’s most recent moratorium is limited to only residential properties, staying foreclosures and retroactively voiding all such non-judicial foreclosure sales and sheriff’s execution sales that were conducted this year.

In addition to the ban on foreclosures, HB 2009 also provides several other notable protections for borrowers during the emergency period, which began at the beginning of this year. First, if a borrower notifies the lender that the borrower cannot make a payment because of lost income from the COVID-19 pandemic, the lender cannot treat the borrower’s non-payment of any amount due to the lender during the period as a default. After such notification and, unless otherwise agreed by lender and borrower, the lender must defer collecting payment and must permit the borrower to pay the amount deferred during the emergency period to the loan’s maturity date. Further, once the borrower gives that notice to the lender, a lender may not:

(A) Impose charges, fees, penalties, attorney fees or other amounts that the lender might have otherwise imposed or collected from a borrower for failing to make payment;

(B) Impose a default rate of interest that the lender might have imposed or collected from a borrower for failing to pay an amount otherwise due during the emergency period;

(C) Treat the borrower’s failure pay any amount due during the period as an ineligibility for a foreclosure avoidance measure; or

(D) Require or charge for an inspection, appraisal or broker opinion of value during the emergency period.

The new law also creates a private right of action for borrowers to recover damages for an ascertainable loss of money or property due to the prohibited actions of a lender or trustee and allows the borrower to recover attorney’s fees and costs as well. A lender is not liable for damages for acts taken before the lender receives the lost income notice from the borrower.

The protections of HB 2009 were initially set to expire on June 30, 2021, however, the law authorized the Governor to extend the mortgage foreclosure moratorium period for two successive three-month periods by executive order. On June 11, 2021, Governor Brown announced that she had extended the moratorium for that first three-month period, until September 30, 2021, and, if the Governor intends to extend the moratorium again, the Governor must do so by August 16, 2021.

By David Venables

by Jeremiah Ross

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AMG Capital Management, LLC v. Federal Trade Commission

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

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

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

Facebook, Inc. v. Duguid

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

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

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

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

Online Merchants Guild v. Cameron

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

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

Krakauer v Dish Network, LLC

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

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

A number of bills impacting consumers and consumer law are still actively being debated in the Oregon legislature.  The consumer law section is tracking these bills and you can too by clicking the following link:

https://www.osbar.org/pubaffairs/reports/BarGroupBillSummary.html?bargroupid=838

Is there a consumer-related bill that you think we should be tracking?  Let us know by e-mailing the executive committee at: [email protected]

By Matt Kirkpatrick

The Consumer Financial Protection Bureau provided Congress with its 2020 Consumer Response Annual Report on March 24, 2021.  As one might expect, the Report shows that 2020 was a particularly difficult year for consumers.  Before the pandemic the CFPB received approximately 300,000 consumer complaints each year.  In 2020, more than 540,000 consumers filed complaints, an 80% increase from the pre-pandemic average.  While the Report notes that only 32,100 complaints (about 6%) used words related to the pandemic, this article highlights ways the pandemic impacted consumer complaints to the CFPB last year.

Interestingly, the number of complaints related to debt collection tactics and threats actually decreased last year.  Citing the CFPB’s March 2021 FDCPA annual report, the Report speculates this decline may be related to pandemic-related restrictions states have placed on debt collection activities.  However, debt collection was the second most complained-about issue among servicemembers.  There were complaints from tenants being pursued by debt collectors after vacating their apartments.

It is perhaps unsurprising that many consumers reported issues with online banking and mobile banking applications, given pandemic-related stay-at-home orders and limited access to physical bank branches.  One large provider reported a 200% increase in new mobile banking registrations early in the pandemic.  Complaints included access issues, errors and delays in online bill payments, and deposit discrepancies.

With respect to mortgage-related complaints, the Report notes that CARES Act’s homeowner hardship forbearance provisions and the federal- and state-issued foreclosure moratoriums appear to have had their intended effect.  While mortgage-related complaints increased in spring 2020, they decreased for the rest of the year.  Overall, in 2020, complaints about struggling to make mortgage payments were down 32% from the average for the prior two years.  In contrast, complaints about applying for a mortgage increased 88%, which the Report attributes to increased activity due to low interest rates.

Complaints related to student loans were similarly a mixed bag in 2020.  Such complaints were down 45% overall from the prior two years’ average, probably due in large part to the CARES Act’s borrower relief provisions.  However, complaints were generated by the considerable confusion over pandemic relief measures, including the different treatment of Education Department-owned loans in contrast to, for example, student loans owned by states, commercial lenders, schools, and other private entities, which do not qualify for relief under the Act.  Difficulties enrolling in or recertifying income driven repayment plans also lead to many complaints, including by borrowers whose payments increased after they were incorrectly required to recertify their plans.  Borrowers also continued to complain about the Public Service Loan Forgiveness program, now including servicers incorrectly treating pandemic-related suspended payments as non-qualifying payments, contrary to the CARES Act.

Money services complaints increased significantly in 2020, with complaints about domestic money transfers up 47% compared to the prior two years’ average, digital wallet complaints up 126%, and fraud scam complaints up 41%.  The Report found it notable that delays in fund deliveries exacerbated consumers’ difficulties in responding to the pandemic.

Given that the pandemic’s effects discussed above cut both ways in terms of the volume of consumer complaints, one might ask what drove the overall 80% increase in complaints in 2020.  The answer: consumer reporting agencies.  The CFPB received 319,300 credit or consumer reporting complaints last year.  Already the complaint leader and trending upwards in years past, credit report-related complaints increased 129% in 2020 from the prior two years’ average.  The Report found this increase to be concentrated in complaints about inaccurate information and the “Big Three” credit reporting agencies (“CRAs”)—Equifax, Experian, and TransUnion—a significant portion of which were related to identity theft.  Complaints about incorrect information increased 147% and complaints about investigation problems increased 139%.  The Report further noted that CRAs stopped providing complete and accurate responses to many complaints last year.  It promised to issue a separate report later this year to further analyze the credit reporting complaints and the CRAs’ responses.

It has been a difficult year for most of us, including as consumers.  It will be interesting to see how the trends identified in the CFPB’s 2020 Report translate into new demand for consumer legal services.

 

In March the Oregon Department of Justice released its list of Top Ten Consumer Complaints for 2020.  Leading the way with 1,035 complaints were issues related to Telecommunications.  Complaints relating to “Grocery, Food and Beverage” made the list for the first time due to allegations of price gouging during the COVID-19 pandemic.

The 2020 Top Ten List is:

By Emily Rena-Dozier

Many landlords use tenant screening companies — like RealPage, AppFolio, and CoreLogic — to vet tenant applications for credit history, rental history, and criminal history. Unfortunately, while these services provide greater efficiency for landlords, they come with significant risks for tenants. As recent investigative reports have shown, these automated background checks are rife with errors. As a result, tenants may be denied housing based on records from other individuals who merely share a last name, or a previous address.

What recourse do tenants have when their applications are denied based on faulty information? Even if a tenant is able to determine what the error was, the time-sensitive nature of rental housing applications means that a landlord has often moved on to the next applicant by the time the problem is identified and corrected. Even identifying the error can be difficult; in Oregon, the landlord is only required to provide the tenant with the contact information for the screening service.

Tenant screening services — largely automated and algorithm-based — rely heavily on credit reports and scrape information from court records and other sources of public information. Although tenant screening companies are regulated under consumer protection laws, the rules are more lax for tenant screening than they are for other forms of credit reporting. Unlike with credit reports, there’s no central system that a tenant can consult for a copy of their screening record. This means that tenants may have no recourse other than to sue screening companies for violations of the Fair Credit Reporting Act, or, in at least one current case, violations of the Fair Housing Act.

Consumer lawyers have an important role to play in advocating for stronger protections for tenants, greater regulation of the tenant-screening industry, and, where necessary, litigating on behalf of tenant applicants when screening errors have harmed them.

By Hope Del Carlo

Homeowners who’ve experienced a financial hardship during the COVID-19 pandemic may be eligible for help from the Oregon Homeownership Stabilization Initiative (OHSI). OHSI distributed the U.S. Treasury’s Hardest Hit funds that were allocated to Oregon homeowners in the wake of the Great Recession. Those programs have ended, however the new COVID-19 Mortgage Support program is open.

Borrowers who qualify receive forgivable assistance, as long as they don’t sell the home or refinance for cash for at least five years.

In order to be eligible to receive COVID-19 Mortgage Relief, the applicant must:

• Have experienced a financial hardship due to unemployment, reduced hours, decline in self-employment earnings, divorce, death, medical costs or disability.
• Own and occupy a 1- to 4-unit home in Oregon as your principal residence.
• Be a borrower who is obligated on a mortgage of not more than $491,050, secured by    your principal residence (some exceptions apply).
• Be less than $40,000 behind on mortgage payments.
• Have been current on the mortgage until January 1, 2020.
• Have a current monthly housing expense to income ratio of not more than 45%.
• Not be in an active bankruptcy.
• Meet OHSI’s annual income limitations (generally, not more than 160% of the state median income).
• Not have been convicted of certain finance-related crimes within the last ten years.

For more information on the program and how to apply, visit oregonhomeownerhelp.org.

By Emily Templeton, Lewis & Clark Law School, 2021.

It’s been over two years since Oregon class action lawyers Michael Fuller and Kelly Jones filed a false advertising lawsuit against national food retailer Fred Meyer. Class members allege Fred Meyer violated Oregon’s Unlawful Trade Practices Act (UPTA) by charging customers hidden bottle deposit fees on exempt beverages that could not be refunded under Oregon law.

Specifically, the lawsuit alleges Fred Meyer made false misrepresentations and
omissions when it charged customers more than certain beverage items were
actually worth in violation of Oregon’s consumer protection laws.

In its motion to dismiss, Fred Meyer argued that (1) the district court lacked subject
matter jurisdiction; and (2) plaintiffs failed to state a claim upon which relief can be
granted. In support of the latter, Fred Meyer urged the court to require plaintiffs to
establish reliance in order to prove they incurred an ascertainable loss.

U.S. District Court Judge Michael Mosman made two important findings in his
opinion issued on November 20, 2020:

(1) The court found jurisdiction was proper in federal court because plaintiffs
were not seeking to “enjoin, suspend, or restrain” the collection of any state
“tax”; and
(2) The court found plaintiffs were not required to establish reliance when
alleging ascertainable loss under a diminished value theory.

Fred Meyer had argued that plaintiffs must demonstrate subjective reliance on a
representation, act, or omission that violates the UTPA in order to prove they
incurred an ascertainable loss.

In Pearson v. Philip Morris, Inc., 361 P.3d 3 (2015), the Oregon Supreme Court’s
majority opinion left open the question of whether a diminished value theory
requires “reliance to establish the requisite causal connection.” Judge Mosman,
citing Justice Walter’s concurrence in Pearson, affirmed plaintiffs’ assertion that
reliance is not required under a diminished value theory of liability.

Backed by the UPTA’s plain language and Justice Walter’s concurrence, the court
determined plaintiffs had adequately established ascertainable loss by showing
Fred Meyer had charged customers a price over and above the objective market
value of certain beverage items such that reliance was irrelevant. The court
reiterated, however, that a plaintiff may be required to show reliance to prove
ascertainable loss under a “refund of the purchase price” theory.