The CARLAWYER© Feb 2019

By Thomas B. Hudson and Nicole F. Munro

 

Here’s our monthly article on legal developments in the auto sales, finance and leasing world.  This month, the action involves only the Consumer Financial Protection Bureau.  As usual, this month’s article features our “Compliance Tip” and our “Case of the Month.”

Note that this column does not offer legal advice.  Always check with your lawyer to learn how what we report might apply to you, or if you have questions.

This Month’s CARLAWYER© Compliance Tip

Does your website meet the requirements of the Americans With Disabilities Act?  If hearing that question made you spill your coffee – if you haven’t given that topic any thought – you should know that a number of dealers around the country have been threatened with ADA litigation over the ability of disabled persons to use the dealers’ websites.  Perhaps it’s lawyer time?

Federal Developments

 Bureau’s UDAP Authority is Alive and Well.  On January 3, the Bureau announced that it reached a consent order with USAA Federal Savings Bank for allegedly (1) violating the Electronic Fund Transfer Act and Regulation E by failing to honor consumers’ requests to stop payment on preauthorized electronic fund transfers and by failing to initiate and complete adequate error resolution investigations when consumers contested incorrect or unauthorized electronic fund transfers, and (2) engaging in unfair acts and practices by reopening deposit accounts consumers had previously closed without seeking prior authorization or providing adequate notice.  The consent order requires USAA to, among other things, provide approximately $12 million in restitution to affected consumers and pay a $3.5 million civil penalty.

Looking for Authority.  On January 17, new Bureau Director Kraninger announced that she has asked Congress to grant the Bureau clear authority to supervise for compliance with the Military Lending Act.  The Bureau sent its legislative proposal to Speaker Pelosi and Vice President Pence (in his capacity as president of the U.S. Senate), with copies to the chairs and ranking members of the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services.

And Another Report.  On January 24, the Bureau’s Office of Servicemember Affairs released its annual report.  The OSA monitors and analyzes complaints from servicemembers, veterans, and military families about consumer financial products or services, credit reporting, and debt collection, among other issues facing servicemembers in the financial marketplace.  The report provides an analysis of those complaints and discusses perceived emerging issues and trends in the financial marketplace that affect servicemembers, educational initiatives, and the OSA’s coordination with other federal and state agencies.

Enforcing Void Loans?  The Bureau settled last week with several payday lenders and corporate officials based in Canada and Malta for allegedly violating the Consumer Financial Protection Act of 2010. The CFPB alleges they misrepresented to consumers that they were obligated to repay loans in states where the loans violated state licensing or usury laws and state law voided the loan. The loans were also illegally conditioned on irrevocable wage assignment clauses, which the CFPB alleges violates the Credit Practices Act.

Case of the Month

A consumer bought a new boat from a boat dealership. The purchase agreement signed by the consumer provided that he was buying the boat “as is,” with no warranties by the dealership. After numerous issues with the boat’s carbon monoxide alarm, generator, and port engine as well as a fuel leak, the consumer sued the dealership for violating the Deceptive Trade Practices Act, breach of contract, negligence, and gross negligence. The dealership moved for summary judgment, arguing that the consumer’s claims failed because he bought the boat “as is.” The trial court granted the dealership’s motion, and the Court of Appeals of Texas affirmed. The appellate court noted that the “Texas Supreme Court has held that, generally, an ‘as is’ clause will defeat the element of causation in DTPA, fraud, and negligence claims.” In this case, the appellate court rejected the consumer’s argument that the “as is” provision was concealed. The appellate court found that the provision was printed in bold and capitalized typeface on the back page of a 2-page agreement. Moreover, the consumer signed the first page of the agreement directly below language telling him to see the reverse side for important information regarding limitation of warranties. The appellate court added that the consumer’s failure to read the document was not a defense. Finally, the appellate court noted that there was no evidence that the dealership was aware of and attempted to conceal the boat’s defects. See Juda v. MarineMax, Inc., 2018 Tex. App. LEXIS 10640 (Tex. App. December 20, 2018).

 So, there’s this month’s roundup!  Stay legal, and we’ll see you next month.


 

Tom (thudson@hudco.com) is Of Counsel and Nikki (nmunro@hudco.com) is a Partner in the law firm of Hudson Cook, LLP.  Tom has written several books and is the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers.  He is the Senior Editor of CounselorLibrary.com’s CARLAW®, a monthly report of legal developments for the auto finance and leasing industry.  Nikki is Editor in Chief of CARLAW®, a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery®. For information, visit www.counselorlibrary.com. © CounselorLibrary.com 2019, all rights reserved. Single publication rights only, to the Association..  HC 4829-1089-6519.1.

The CARLAWYER©

By Thomas B. Hudson and Nicole F. Munro

Here’s our monthly article on legal developments in the auto sales, finance and leasing world.  This month, the action involves the Bureau of Consumer Financial Protection and the Federal Trade Commission.  As usual, this month’s article features our “Case of the Month.”

Note that this column does not offer legal advice.  Always check with your lawyer to learn how what we report might apply to you, or if you have questions.

This Month’s CARLAWYER© Compliance Tip

Note the Federal Trade Commission enforcement action described below dealing with mailing fake recall notices.  The FTC settlements include both the dealer and the promotions company.  The lesson for dealers from this action is clear – vendors can get you into trouble.  Before you sign up for that next ad campaign, do your due diligence and have your lawyer review the contract.  Hint – the time for those actions is BEFORE you sign up.  You should also have a vendor management process in place to ensure the activities of your vendors on your behalf comply with the law.

Federal Developments

 Fake News!  On October 10, the FTC announced that a group of car dealerships and their president and vice president have settled allegations that they mailed more than 21,000 fake “urgent recall” notices to consumers to lure them to visit dealerships. The FTC also has agreed to a settlement with a California-based marketing firm and its owner that, according to the complaint, designed the fake recall notices and worked closely with the dealerships to send them.  According to the FTC, the vast majority of the vehicles covered by the notices did not have open recalls. The court orders settling the FTC’s charges bar the defendants from such deceptive conduct in the future.

The dealerships do business as Passport Toyota, Passport Nissan of Alexandria, Virginia, and Passport Nissan of Marlow Heights, Maryland. The marketing company, Temecula Equity Group, LLC, does business as Overflowworks.com.

Se habla español.  On October 15, the Bureau released an updated and expanded glossary, prepared in cooperation with other federal agencies, that contains an extensive list of common financial terms translated into Spanish.  The glossary is supposed to help financial service providers, financial educators, government agencies, and other organizations effectively communicate with consumers with limited ability to speak, write, or read English.  Use of the glossary is not mandated, nor is it guidance or a requirement for any stakeholder.  The Bureau uses the glossary to ensure consistency as it translates consumer education materials from English to Spanish.  If you use an ad company, make sure to send it a copy of the glossary.  If you do ads in-house, you’ll need a copy, as well.

Complain, Complain, Complain!  On October 23, the Bureau released its “Complaint Snapshot” a 50-state report, illustrating complaints reported by people in all 50 states and the District of Columbia. The Bureau says it received more complaints from California consumers than from any other state, followed by Florida, Texas, New York, and Georgia.  Florida consumers complained most often about credit or consumer reporting, while Texas consumers beefed (sorry, couldn’t resist) the most about debt collection.  Wyoming consumers complained the least.

“Small-Dollar” Rules Revisited.  On October 26, the Bureau stated that it expects to issue proposed rules in January 2019 that will reconsider the Bureau’s rule regarding Payday, Vehicle Title, and Certain High-Cost Installment Loans, issued by the Bureau in October 2017.  The Bureau is planning to revisit only the ability-to-repay provisions of the rule and not the payments provisions, in part because the ability-to-repay provisions “have much greater consequences for both consumers and industry than the payment provisions.”  The Bureau will also address the compliance date for the rule, currently August 19, 2019.  The Bureau noted that it will make final decisions regarding the scope of the proposal closer to the date of issuance of the proposed rules.

Big Federal Privacy Shindig.  The FTC recently announced that it is accepting presentations for its fourth annual PrivacyCon, to be held on June 27, 2019.  PrivacyCon addresses the latest research and trends related to consumer privacy and data security.  The call for presentations seeks empirical research responding to several questions, including: (1) What new privacy and security issues arise from emerging technologies such as the Internet of Things, artificial intelligence, and virtual reality? (2) What are the greatest threats to consumer privacy today? (3) How can one quantify the costs and benefits to consumers of keeping data about them private? (4) What are the incentives for manufacturers and software developers to implement privacy and security by design in their goods or services and keep security up to date? (5) Is there evidence that the market can provide efficient levels of privacy and data security?

 

Case of the Month

Odometer Act Claim Against Dealer Failed Where Buyer’s Vehicle Was Exempt from Act’s Disclosure Requirements and Dealer Did Not Waive Exemption.  In March 2018, a buyer bought a 2008 GMC Yukon with an odometer reading of 138,616 miles from a dealership. The dealership provided the buyer with two documents showing that the mileage was 138,616, but the bill of sale stated, “Odometer Reading: EXEMPT.”

Almost immediately after buying the vehicle, the buyer had problems and was told by the dealership that the vehicle needed extensive repairs.  When the buyer took the vehicle to get a trade-in valuation, he received a title report showing that, in November 2014, the odometer reading was 199,689 and that, in September 2015, the odometer reading was 98,000.

The buyer sued for violations of the federal Odometer Act.  The dealership moved to dismiss, arguing that the Act and regulations expressly exempt vehicles manufactured 10 years before the date of sale.  Because the buyer bought the vehicle in March 2018, more than 10 years after its January 2008 manufacture date, the dealership was not required to disclose the vehicle’s mileage.

The buyer argued that even though the dealership did not have a legal obligation to disclose the odometer reading, because it voluntarily disclosed the vehicle’s mileage to him and his lender in two documents provided at the sale, the odometer disclosure must be truthful and accurate.  The federal trial court disagreed with the buyer.  The court distinguished a case in which the seller of an RV, exempt from the odometer disclosure requirements, disclosed the odometer reading to the buyer in an Odometer Disclosure Statement and a Buyer’s Order.  In this case, no such statements were made, and, as noted by the court, the bill of sale specifically stated “EXEMPT” next to the odometer reading.  Because the vehicle was exempt from the odometer disclosure requirements in the Odometer Act and the dealership did not waive that exemption in documents it provided to the buyer, the court concluded that the Odometer Act claim failed.  See Tirtel v. Sunset Auto & Truck, LLC, 2018 U.S. Dist. LEXIS 173222 (M.D. Fla. October 9, 2018).

So, there’s this month’s roundup!  Stay legal, and we’ll see you next month.

________

Tom (thudson@hudco.com) is Of Counsel and Nikki (nmunro@hudco.com) is a Partner in the law firm of Hudson Cook, LLP.  Tom has written several books and is the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers.  He is the CEO of CounselorLibrary.com, LLC and the Senior Editor of CounselorLibrary.com’s CARLAW®, a monthly report of legal developments for the auto finance and leasing industry.  Nikki is Editor in Chief of CARLAW®, a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery®. For information, visit www.counselorlibrary.com. © CounselorLibrary.com 2018, all rights reserved. Single publication rights only, to the Association. (11/18).  HC 4812-7784-4346.

The CARLAWYER©

The CARLAWYER©

 By Thomas B. Hudson and Nicole F. Munro

Here’s our monthly article on legal developments in the auto sales, finance and leasing world.  This month, the action involves the Bureau of Consumer Financial Protection and the Federal Trade Commission.  As usual, this month’s article features our “Case of the Month.”

Note that this column does not offer legal advice.  Always check with your lawyer to learn how what we report might apply to you, or if you have questions.

This Month’s CARLAWYER© Compliance Tip

In our Case of the Month, below, we describe an attempt by a dealer to “piggyback” on the arbitration agreement of a direct lender financing a sale for the dealer’s buyer.  The attempt failed.  What do your customer-facing documents say about arbitration?  Are you certain that you can use them to compel arbitration and stay out of the crosshairs of those class action lawyers?  Maybe it’s time for a legal checkup.

Federal Developments

 Debt Collectors Slammed.  When the FTC goes after debt collectors, finance companies and buy-here, pay-here dealers need to take notice.  On September 7, the FTC announced settlements with the operators of a Georgia-based debt collection business.  The business, which allegedly used false claims and threats to get people to pay debts – including debts they allegedly did not owe or that the defendants allegedly had no authority to collect.  The settlement bans the operators from the debt collection business and from buying or selling debt.

The FTC’s complaint alleged that the defendants’ business model was based on falsely claiming to consumers that they had committed a crime and would be sued, have their wages garnished, or be put in prison if they did not pay purported debts. It further alleged the defendants collected debts consumers had already paid or that the defendants otherwise had no authority to collect, illegally contacted consumers’ employers and other third parties, and failed to provide written notices and disclaimers required by law.  The settlement prohibits the defendants from misrepresentations regarding any financial products and services, and from profiting from or failing to properly dispose of customers’ personal information collected as part of the challenged practices.  Each order imposes a $3,462,664 judgment that will be partly suspended, due to the defendants’ inability to pay, when they have surrendered certain assets. In each case, the full judgment becomes due immediately if the defendants are found to have misrepresented their financial condition.

Credit Freeze Notice Changes.  On September 12, the Bureau issued an interim final rule, effective September 21, 2018, updating the model Summary of Consumer Identity Theft Rights and model Summary of Consumer Rights provided in Appendices I and K to Regulation V, which implements the Fair Credit Reporting Act.  This interim final rule is driven by the FCRA’s recent amendment by the Economic Growth, Regulatory Relief, and Consumer Protection Act.  These legislative changes add a new notice requirement to any summary of rights required by section 609 of the FCRA.  The notice language, provided in S. 2155, explains new consumer rights to a national credit freeze with the nationwide consumer reporting agencies and an initial fraud alert for at least one year.  The Bureau’s rule begins the new notice with a header explaining that the security freeze right is available specifically through nationwide consumer reporting agencies, even though the notice must be provided by all consumer reporting agencies.  The rule also updates the contact information provided in the model Summary of Consumer Rights in Appendix K.  To mitigate the impact of these changes on users of the existing model forms, the interim final rule also provides that the Bureau will regard the use of the current model forms published in Appendices I and K, to constitute compliance with the FCRA provisions requiring such forms, so long as a separate page that contains the additional required information is provided in the same transmittal.  Comments are due by November 19, 2018.

Credit Invisible Consumers?  On September 18, the Bureau released its third “Data Point” report on consumers for whom the nationwide consumer reporting agencies have no credit file (i.e., “credit invisible”) and consumers for whom the CRAs have only limited credit histories.  The first report – Credit Invisibles – estimated the number and demographic characteristics of consumers who were credit invisible or had an unscorable credit record.  The second report – Becoming Credit Visible – explored the ways in which consumers establish credit records.  In this new report – The Geography of Credit Invisibility – the Bureau examined geographic patterns in the incidence of credit invisibility to assess the extent to which where one resides is correlated with one’s likelihood of remaining credit invisible.

Pssst!  Wanna Buy a Fake ID?  On September 18, the FTC announced that the operators of websites that sold fake documents used to facilitate identity theft and other frauds have agreed to permanently shut down their businesses as part of separate settlements with the Federal Trade Commission.  In separate cases filed by the FTC, the Commission alleged that individuals and their affiliated companies operated websites that sold customers a variety of fake financial and other documents – such as pay stubs, income tax forms, and medical statements – which can be used to facilitate identity theft, tax fraud, and other crimes.

Case of the Month

Alfredo Fuentes signed a purchase agreement with TMCSF, Inc., d/b/a Riverside Harley-Davidson, to buy a new motorcycle.  The purchase agreement did not include an arbitration provision.

At the same time, Fuentes signed a security agreement with Eaglemark Savings Bank to finance the purchase.  The security agreement included an arbitration provision that governed all claims “between [Fuentes] … and ESB and/or any of ESB’s successors, assigns, parents, subsidiaries, or affiliates and/or any employees, officers, directors, [or] agents.”  “ESB” was defined as Eaglemark and its successors and assigns.

Fuentes brought a class action against TMCSF, alleging that it made various misrepresentations in connection with the advertising and sale of its motorcycles.  TMCSF moved to compel arbitration pursuant to the arbitration provision in the security agreement.

The trial court denied the motion, concluding that TMCSF was not a party to the security agreement (it was solely between Fuentes and Eaglemark) and the arbitration provision did not state that it governed claims between Fuentes and TMCSF.  TMCSF appealed.

The Court of Appeal of California affirmed the trial court’s decision.  The appellate court held that TMCSF was not entitled to compel arbitration because: it was not a party to the security agreement containing the arbitration provision (and not a non-party expressly specified as able to invoke the arbitration provision); it was not acting in the capacity of an agent of a party to the arbitration provision; and it was not a third-party beneficiary of the arbitration provision.  The appellate court also agreed with the trial court that Fuentes was not equitably estopped from denying the application of the arbitration provision to his claims.

Fuentes v. TMCSF, Inc., 2018 Cal. App. LEXIS 759 (Cal. App. August 23, 2018)

So, there’s this month’s roundup!  Stay legal, and we’ll see you next month.


Tom (thudson@hudco.com) is Of Counsel and Nikki (nmunro@hudco.com) is a Partner in the law firm of Hudson Cook, LLP.  Tom has written several books and is the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers.  He is the CEO of CounselorLibrary.com, LLC and the Senior Editor of CounselorLibrary.com’s CARLAW®, a monthly report of legal developments for the auto finance and leasing industry.  Nikki is Editor in Chief of CARLAW®, a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery®. For information, visit www.counselorlibrary.com. © CounselorLibrary.com 2018, all rights reserved. Single publication rights only, to the Association. (10/18).  HC 4852-5358-1174.