Defenses

Cicero v. American Satellite, Inc. (Franklin Cty.), 2011-Ohio-4918, PIF 2977

Plaintiff received numerous emails from Defendant advertising DirecTV and Dish Network which failed to include all applicable terms and conditions of the offer and which used the word "free" in connection with the advertised goods and services without stating all of the applicable terms and conditions.  The Court of Appeals affirmed the trial court's decision that, despite the failure to comply with the requirements of the Ohio Administrative Code, Defendant did not violate the CSPA because Plaintiff was not deceived by the failure to include all applicable terms and conditions related to the offer.

Disclosure

In re Amerigas Propane, L.P., AVC No. 406281, PIF 2968

Supplier agrees not to: 1) represent that a specific price advantage exists, if it does not; 2) make offers in written or printed advertisements without stating, clearly and conspicuously, in close proximity to the words stating the offer any material exclusions, reservations, limitations, modifications, or conditions as required by OAC 109:4-3-02(A)(1); 3) fail to disclose the price of propane that it delivers to consumers if requested by the consumer prior to delivery; 4) fail to make timely delivery of propane to consumers, if promised or otherwise stated to consumers; 5) fail to clearly and conspicuously disclose that fees may apply.  Supplier agrees to use its best efforts to follow the business practices set forth in the agreement (see AVC for the list of best practices).  Supplier to pay $50,000 to the Consumer Protection Enforcement Fund for attorney fees and investigative costs.

Education

State ex rel DeWine v. Heights Driving School II, Summit Cty. Case No. CV-2010-08-5286, PIF 2979

Defendants operated a driving school which offered classroom and on-the-road driving instructions.  In March 2010, Defendants' surety bond was cancelled for non-payment of the premium.  After the cancellation of the bond, the Ohio Department of Public Safety revoked Defendants' license to operate a driving school. Defendants continued to offer driving instruction to consumers after the revocation of the license.  During 2009 and 2010, Defendants accepted money from consumers as down payments for the purchase of driving instructions and then failed to provide the services within eight weeks and failed to refund the consumers' monies.  Defendants committed unfair and deceptive acts in violation of the CSPA by accepting money from consumers for goods or services and then failing to provide such goods or services within eight weeks or to refund the consumers' monies and by failing to maintain a statutory agent with the Ohio Secretary of State.  Defendants committed unconscionable acts in violation of the CSPA by accepting payment from consumers for a consumer transaction while knowing of the consumers' inability to obtain a substantial benefit from the subject of the transaction.  Defendants ordered to pay $15,000 in consumer restitution, $50,000 as a civil penalty (suspended), and $15,000 in attorney fees (suspended).

Failure to Deliver

State ex rel DeWine v. Hall, Franklin Cty. Case No. 11 CV 5946, PIF 2971

Defendants solicited consumers door-to-door for their tree cutting service. Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) accepting payments from consumers for tree cutting and related services and then permitting eight weeks to elapse without making full delivery of the ordered services, full or partial refunds, advising consumers of the duration of an extended delay and offering refunds within two weeks if requested, or furnishing similar services of equal or greater value as a substitute in violation of OAC 109:4-3-09(A)(1); 2) performing shoddy and unworkmanlike services and failing to correct such work within a reasonable time; 3) misrepresenting the benefits, standard, or quality of their services; 4) failing to provide a written itemized list of services rendered, including a list of parts or materials used, the cost to consumers of such parts or materials, the amount charged for labor, and the identity of the individual(s) who performed any of the services; and 5) failing to register the use of fictitious business names with the Ohio Secretary of State.  Defendants committed unconscionable acts and practices in violation of the CSPA by knowingly making false or misleading statements upon which consumers have relied to their detriment.  Defendants violated the Home Solicitation Sales Act and the CSPA by: 1) beginning performance of ordered services during consumers’ three day right to cancel period; 2) failing to provide consumers with the written agreement that evidences the sale of services, to obtain a signature on such writing, and to leave a copy of such signed writing with the consumers; and 3) failing to notify consumers of their three day right to cancel the sale of services.  Defendants ordered to pay $14,277.10 in consumer restitution, $225,000.00 as a civil penalty, and $2,610.00 in investigatory costs.

Fair Debt Collection Practices Act

State ex rel DeWine v. Allied Interstate, Inc., Franklin Cty. Case No. 11 CVH 08 10527, PIF 2969

Defendant committed unfair, deceptive, and unconscionable acts and practices in violation of the CSPA by violating the Fair Debt Collection Practices Act.  Among other acts, Defendant: 1) collected, or attempted to collect, debts by using prohibited debt collection methods; 2) contacted third parties not connected to or liable for the debts and divulged information about the debts allegedly owed by consumers; 3) continued to place telephone calls to consumers' places of employment after consumers or representatives of the employers instructed Defendant to cease calling those numbers; 4) engaged in conduct the natural consequence of which was to harass, oppress, or abuse in connection with the collection of a debt; 5) used abusive or profane language in connection with the collection of debts; 6) placed multiple telephone calls within a short period of time to consumers for the purpose of annoying or harassing consumers at the called numbers; 7) attempted to collect debts that were not owed by the consumers contacted by Defendant; 8) collected or attempted to collect debts allegedly owed by consumers by giving the consumers false or misleading information; 9) attempted to collect debts allegedly owed by threatening actions against consumers when there was no legal authority or intention to do so; and 10) withdrew money from consumers' bank accounts, on dates or in dollar amounts, not authorized by consumers.  (See Consent Judgment for full list of acts and practices).  Defendant ordered to comply with best practices set forth in the Order.  Defendant to pay $75,000 in consumer damages and $75,000 to the Consumer Protection Enforcement Fund.

Home Improvements

In re Tischer dba Big Ten Construction, LLC, Akron-Canton Restoration and TNT Builders, AVC No. 403098, PIF 2978

Supplier agrees to refrain from the following acts and practices in connection with the advertising and sale of home improvement goods, repairs, and services: 1) committing an unfair or deceptive act or practice in connection with a consumer transaction in violation of the CSPA, 2) committing an unfair or deceptive act or practice in connection with a consumer transaction in violation of HSSA, 3) entering into consumer transactions on terms that Supplier knows are substantially one-sided in his favor in violation of R.C. 1345.03(B)(5), 4) failing to disclose the cost or estimated cost of home improvement goods and services to be provided to consumers, 5) accepting down payments for home improvement goods or services and then failing to deliver those goods or services or allowing more than 8 weeks to elapse without delivering the goods or services or making a full refund of the down payment in violation of OAC 109:4-3-09, 6) performing shoddy and unworkmanlike service in connection with a consumer transaction and failing to correct such work, and 7) failing to respond to consumer inquiries and failing to give consumers accurate information about material facts related to delivery and service dates, information pertaining to permits required for home improvement work, and the endorsement and deposit of insurance and down payment checks. Supplier to pay $1,702.01 in restitution and $15,000.00 to the Consumer Protection Enforcement Fund ($13,000.00 suspended).

Motor Vehicles

State ex rel DeWine v. Victoria Motors, Franklin Cty. Case No. 10 CVH 08 12072, PIF No. 2972

A supplier commits unfair and deceptive acts and practices in violation of the CSPA by: 1) offering consumers rebates as an inducement for entering into a consumer transaction in return for providing the names of prospective consumers or otherwise helping the supplier to enter into consumer transactions, 2) neglecting to state in the application for title the true price of the sale as required by ORC. 4505.06; 3) failing to provide to consumers at the time of the initial deposit a dated written receipt stating clearly and conspicuously whether the deposit is refundable and under what conditions, 4) delivering a motor vehicle to a consumer pursuant to a sale which is contingent upon financing without a written agreement stating the parties' obligations should such financing not be obtained, 5) raising the actual purchase price of any motor vehicle to a specific consumer without the consumer's consent to the price increase, and 6) failing to provide true and complete odometer disclosures.  A supplier commits unconscionable acts and practices in violation of the CSPA by 1) repossessing automobiles even before the payments are due or consumers are in default of the retail installment sales contracts, and 2) signing a consumer's signature to the assignee part of the assignment of title without the consumer's consent or a properly executed power of attorney.  Defendants ordered to pay $6,882.00 in consumer restitution, $50,000.00 as a civil penalty ($37,500.00 suspended), and $5,000.00 in attorney fees and investigative costs.

Sparks v. Hill, Fairborn M.Ct. Case No. CVI 1100983, PIF 2973

Plaintiffs hired Defendant to perform repairs to their motor vehicle.  Defendant attempted unsuccessfully to repair the vehicle and refused to provide Plaintiffs with an itemized list of the repairs that were made and the parts that were used.  The court found that Defendant's refusal to provide the itemized list was a violation of OAC 109:4-3-13.  The Court awarded the Plaintiffs $3,000 in damages, the maximum amount recoverable in small claims court.

Johnson v. M7H Auto Repair, Fairborn M.Ct. Case No. CVI 1101022, PIF 2974

Plaintiff hired Defendant to repair the transmission on his motor vehicle.  After paying for the repairs, Plaintiff discovered that no work had actually been done to the vehicle.  The Court found that it was a violation of the CSPA to represent that repairs have been made when such is not the fact.  Plaintiff awarded treble damages in the amount of $2,250.00.

In re Three-C Body Shop, Inc., AVC No. 414016, PIF 2975

Supplier agrees to: 1) provide a proper estimate form and ensure that the consumer completes an estimate choice and signs or initials the estimate form in compliance with OAC 109:4-3-13(A)(B); 2) obtain oral or written authorization from consumers for the anticipated cost of any additional repairs or services which amount to 10% or more of the original estimate in compliance with OAC 109:4-3-13(C)(2); 3) not charge for unauthorized repairs or services in violation of OAC 109:4-3-13(C)(5); 4) not represent that repairs or services are necessary when such is not the fact in violation of OAC 109:4-3-13(C)(8); and 5) not materially understate or misstate the estimated cost of the repair or service in violation of OAC 109:4-3-13(C)(11).  Supplier to pay $7,500.00 to the Consumer Protection Enforcement Fund ($2,500.00 suspended).

Sampsel v. Quality Mechanic On Duty, Toledo M.Ct. Case No. CVI-11-10931, PIF 2976

Plaintiff hired Defendant to make repairs to her motor vehicle.  After paying for the repair, Plaintiff discovered that Defendant had failed to fix the problem with the vehicle and, in fact, the problem was later fixed by simply connecting a wire.  The Court found that Defendant had violated the CSPA and awarded treble damages of $900.

Real Estate Settlement Practices Act

Augenstein v. Coldwell Banker Real Estate LLC, SD Ohio Case No. 10-191, PIF 2970

Plaintiffs obtained settlement services from NRT Columbus, LLC in connection with their purchase of real estate.  NRT Columbus charged Plaintiffs an administrative fee of $199 and a brokerage commission of $19,710.  Plaintiffs claimed that the administrative fee violates RESPA because it is a fee for which no services are rendered and/or it is a duplicative fee for services covered by the broker's commission.  After hearing testimony that the administrative fee was not for any specific services, but rather just part of the total commission and was a way to increase the dollars received and retained by the company when representing buyers, the Court found that the administrative fee violated RESPA, section 8(b).  The Court found that if it were to accept Defendant's argument that a charged fee can be factored into a total commission without being connected to a specific service would run counter to RESPA's consumer protection purpose.  Plaintiffs' motion for summary judgment was granted.