CompuCredit Corp. v. Greenwood
, US S. Ct. Case No. 10-948, PIF 2992
The Supreme Court found that the Credit Repair Organizations Act does not preclude enforcement of an arbitration agreement in a lawsuit alleging violations of the Act. CompuCredit marketed a credit card to consumers to assist them in rebuilding their credit. Consumers sued alleging that the many undisclosed fees associated with opening the card greatly reduced the advertised credit limit, thereby reducing their opportunity to use the card to rebuild their credit. The credit card agreement contained an arbitration clause which CompuCredit sought to enforce. The trial court and the Ninth Circuit Court of Appeals denied the motion to compel arbitration. Credit repair organizations are required by the Act to inform consumers of their rights under the Act. Specifically, the notice to consumers is required to include the disclosure that consumers have the "right to sue" for a violation of the Act. The Court held that, as 15 USC 1679g(a), which gives consumers the right to enforce the supplier's liability for failure to comply with the Act, is silent on whether claims under the Act can proceed in an arbitration forum, the Federal Arbitration Act requires that the arbitration clause be enforced according to its terms.
Jones v. Diamond Warranty Corp.
, 2011-Ohio-6744, PIF 2997
The Court of Appeals found that the trial court had correctly awarded Plaintiff treble damages and attorney fees. Upon reviewing the jury interrogatories, the Court determined that the jury had found that Defendant had committed unconscionable acts in violation of the CSPA in connection with the used car warranty Plaintiff had purchased. Using the standard set forth in Einhorn, the Court found that the Defendant's actions had been knowing, in that Defendant knew it committed the acts complained of, not that it knew those actions violated the CSPA.
State ex rel DeWine v. Latin Explosion
, Franklin Cty. Case No. 09-CVH-12-18753, PIF 2987
Defendants promoted and sold tickets to a concert by the band Los Temerarios, which never took place. Defendants did not have a contract with the band's booking agency. Defendants failed to inquire into the ability of the company with which they had contracted to bind the band to perform. Defendants violated the CSPA by: 1) advertising, promoting, and selling tickets to a concert and failing to deliver the concert or refund consumers the price of their tickets; 2) advertising, promoting, and representing to consumers that the subject of the consumer transaction had the sponsorship and approval of Los Temerarios that it did not have; 3) advertising, promoting, and representing to consumers that the subject of a consumer transaction was available for a reason that did not exist; and 4) failing to register the use of a fictitious business name prior to doing business in Ohio under that name. Defendants ordered to pay $4,040 in consumer restitution and $10,000 in civil penalties (suspended).
Residential Credit Solutions, Inc. v. Virgili
, 2012-Ohio-506, PIF 2995
The Court affirmed the trial court's granting of PNC's motion for summary judgment, finding that PNC had presented sufficient evidence that, as a division of a bank, PNC was exempt from the CSPA.
FAILURE TO DELIVER
State ex rel DeWine v. Lamb
, Franklin Cty. Case No. 11 CVH-07-8393, PIF 2984
Defendant was engaged in advertising, marketing, and selling PlayStation 3 systems and games, Boost Mobile phones, and phone cards via craigslist.org. Defendant committed unfair and deceptive acts and practices in violation of the CSPA by: 1) accepting substantial payments from consumers for goods, failing to deliver the goods purchased, and failing to return the payments to consumers; 2) representing that the goods advertised were available to consumers for a reason that did not exist; 3) representing that a specific price advantage exists, when it did not; 4) selling goods or services without taking reasonable steps to acquire the goods or services; and 5) advertising and selling goods or services without having ownership or possession of the goods or services and failing to disclose that the goods or services were not in his possession. Defendant committed unconscionable acts and practices in violation of the CSPA by entering into consumer transactions when he knew of the inability of consumers to receive a substantial benefit from the subject of the consumer transaction. Defendant ordered to pay $4,684 in consumer restitution and $150,000 in civil penalties.
State ex rel DeWine v. Heights Driving School II, Inc.
, Summit Cty. Case No. CV-2010-08-5286, PIF 2986
Defendants operated a driving school offering consumers in-class and on-the-road instruction. Defendants' surety bond was cancelled in 2010 due to non-payment of premium. As a result of the cancellation of the surety bond, Defendants' license to operate a driving school was revoked by the Ohio Department of Public Safety. Defendants continued to operate the business after the license was revoked. Defendants violated the CSPA by: 1) accepting down payments from consumers for driving training or instruction services and failing to deliver those services within eight weeks or returning the down payments to consumers; 2) accepting payment for a consumer transaction while knowing of the inability of the consumer to receive a substantial benefit from the subject of the transaction; and 3) failing to maintain a statutory agent with the Secretary of State. Defendants ordered to pay $15,000 in consumer restitution and $50,000 in civil penalties (suspended).
State ex rel DeWine v. Terry
, Lawrence Cty. Case No. 11 CV 0C000019, PIF 2988
Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) making false claims in advertising and causing consumers to believe such claims were true, when such was not the case; 2) accepting deposits from consumers in connection with the sale of consumer goods and failing to provide dated receipts stating the time during which the option was binding and whether the deposit was refundable, and under what conditions; 3) accepting money from consumers for goods and then failing to deliver the goods or make a full refund to consumers; 4) representing that the goods for sale were donated by federal government agencies and corporate sponsors and causing consumers to believe such claims were true when, in fact, the goods were purchased from liquidation and surplus auction sales; 5) representing that they were affiliated with Autism Speaks, when such was not the case; 6) routinely failing to deliver goods ordered and paid for by consumers and failing to refund consumers' deposits; and 7) making false and misleading statements of opinion upon which consumers were likely to rely to their detriment. Defendants ordered to pay $17,970 in consumer restitution and $50,000 in civil penalties.
In re Bassett Furniture Industries, Inc.
, AVC No. 331059. PIF 2981
Suppliers were in the business of selling furniture. Suppliers agree that, if they resume the same or similar business in Ohio, they will: 1) refrain from representing that their home furnishings are of a particular standard, quality, grade, style, prescription, or model if they are not; 2) refrain from making false and misleading statements to consumers, upon which the consumers are likely to rely to their detriment; 3) incorporate into their sales contracts all material terms concerning the extent of any warranty or insurance coverage for home furnishing; 4) not require consumers to enter into transactions on terms that Suppliers know are substantially one-sided in favor of them; 5) not include a minimum 25% restocking fee provision in their sales contracts or any other liquidated damage provision that constitutes a penalty; 6) not include provisions in sales contracts which apply penalties to the consumer in the event of the consumer's breach of contract but not to Suppliers in the event that they breach the contract; 7) provide receipts for all deposits and down payments which comply with OAC 109:4-3-07(B); 8) not accept money from consumers and then fail to comply with OAC 109:4-3-09(A)(1)(2); 9) provide consumers, prior to or at the time of sale, with a written copy of their quality standards with respect to what constitutes repairable and unrepairable defects in furniture; 10) provide consumers, prior to or at the time of sale, with a written copy of any and all warranties, insurance coverage, the Guardsman Gold In-Home Protection Plan, or any other service protection plans that apply to the home furnishings purchased. Suppliers further agreed that, if they engage in the same or similar business, they shall modify all sales contracts. Suppliers to pay $50,000 ($48,000 suspended) to the Consumer Protection Enforcement Fund.
State ex rel DeWine v. Roadway Paving Co.
, Clermont Cty. Case No. 11 CVH 1463, PIF 2980
Defendant solicited consumers for repairs to driveways. Defendant committed unfair and deceptive acts and practices in violation of the CSPA by: 1) telling consumers that repairs were needed when they were not, 2) performing shoddy or poor workmanship, 3) misrepresenting the price for Defendant's services, and 4) failing to provide refunds. Defendant committed unconscionable acts and practices in violation of the CSPA by charging prices substantially in excess of the price at which similar services were available. Defendant violated HSSA and the CSPA by: 1) failing to provide the required notice of consumers' three-day right to cancel the transaction and 2) by providing the services before the cancellation period had expired. Defendant ordered to pay $22,900 in consumer restitution and $25,000 in civil penalties.
State ex rel DeWine v. Pinnacle Security, LLC
, Franklin Cty. Case No. 10 CV 18365, PIF 2983
Defendant is engaged in the business of selling home security systems. A supplier violates the CSPA by: 1) making false and misleading claims in advertising in connection with home improvement goods or services and causing consumers to believe that such claims are true, when such is not the case; 2) making claims that the cost of installation of home improvement goods would be free, waived, or discounted when such is not the case; 3) making claims that the cost of a monthly service fee would be a lower price than the price on the contract when such is not the case; 4) failing to repair an inoperable consumer good after expressly warranting the consumer good; 5) failing to honor express warranties; 5) refusing to honor timely delivered notices of cancellation given pursuant to RC 1345.22; 6) failing to inform consumers orally, at the time the consumers enter into a contract, of the consumers' right to cancel the contract pursuant to HSSA; 7) failing to deliver the goods or services for which consumers paid; 8) installing and failing to repair inoperable goods; and 9) failing to honor promised warranties. A supplier commits unconscionable acts and practices in violation of the CSPA by making false and misleading statements upon which consumers were likely to rely to their detriment and by charging consumers liquidated damages, cancellation fees, or termination fees that exceed the amount of the consumers' remaining payment obligation. Defendant to pay $75,867.29 in consumer restitution and $50,000 in civil penalties ($25,000 suspended).
State ex rel DeWine v. Caulk
, Franklin Cty. Case No. 11 CV-9065, PIF 2989
Defendants were engaged in soliciting consumers for home improvement products and services and violated the CSPA by accepting money from consumers for goods or services and then allowing eight weeks to elapse without making delivery of the goods or services ordered or making a refund of the monies paid. Defendants ordered to pay $11,602.12 in consumer restitution and $50,000 in civil penalties.
Hager v. Yonts
, Seneca M.Ct. Case No. CVF 1100714, PIF 2990
The Court found that defendant had violated the CSPA by accepting money from the Plaintiff for home improvement goods and services and then failing to deliver the paid for goods and services, or making a full refund, or advising the Plaintiff of the duration of an extended delay and offering to send a refund within two weeks. Defendant ordered to pay treble damages in the amount of $13,200 plus $1,000 in attorney fees.
State ex rel DeWine v. Backyard Oasis. LLC
, Delaware Cty. Case No. 10-CVH-04-0607, PIF 2991
Defendants were engaged in the business of advertising, soliciting, offering and selling hot tubs, spas, and accessories. A supplier commits unfair and deceptive acts and practices in violation of the CSPA by: 1) accepting deposits from consumers in connection with home improvement services and failing to provide dated receipts stating the time during which the option is binding and whether the deposit is refundable and under what conditions; 2) accepting substantial down payments from consumers for home improvement goods and services and then failing to deliver the goods or services purchased or to return the monies to consumers; 3) providing consumers with inconsistent and inadequate information regarding delivery upon which consumers relied to their detriment; and 4) representing that the subject of a consumer transaction has been supplied in accordance with a previous representation when it has not. A supplier violates HSSA by failing to give proper notice to consumers of their right to cancel their contract by a specific date. Defendants ordered to pay $9,467.86 in consumer restitution and $50,000 in civil penalties (suspended).
The parties entered into negotiations at the school they both attended for Defendant to do some home improvement work for Plaintiff; they later signed the contract for the work at Plaintiff's home. Plaintiff filed a Complaint alleging breach of contract and later amended her Complaint to add claims arising under the CSPA and HSSA due to Defendant's failure to comply with the requirements of HSSA. The Court of Appeals affirmed the trial court's grant of summary judgment to Plaintiff, finding that the evidence showed that the contract between the parties was subject to HSSA as it was negotiated and entered into at a place other than the Defendant's place of business and that Defendant had failed to comply with HSSA due to his failure to provide Plaintiff with a cancellation notice.
State ex rel DeWine v. Lakeside Auto Co.
, Lucas Cty. Case No. CI0201008318, PIF 2985
In granting Plaintiff's motion for partial summary judgment, the Court found that Defendants violated the Retail Installment Sales Act by: 1) repossessing automobiles before payments were due or consumers were in default of the contracts; 2) entering into retail installment contracts and failing to include the date of each payment necessary to pay the time balance of the total amount due; and 3) repossessing used motor vehicles for non-payment even though the retail installment contracts failed to include any language notifying consumers of the date of each payment necessary to pay the time balance of the total amount due under the contract. Defendants' violations of RISA constitute unfair and deceptive acts and practices in violation of the CSPA. Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) failing to provide, at the time of the initial deposit, dated written receipts stating clearly and conspicuously the time during which the option to purchase the used motor vehicle was binding and whether the deposit was refundable and under what circumstances; 2) 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; and 3) failing to provide true and complete odometer disclosures, pursuant to R.C. 4505.06.
Reeves v. Pharmajet, Inc.
, ND Ohio Case No. 11 CV 2347, PIF 2994
The Court granted Defendant's Motion to Dismiss Plaintiff's class action Complaint. Plaintiff's Complaint was based upon Defendant's failure to gain FDA approval for its needle-free influenza vaccine prior to marketing it to health care providers who then used the vaccines on consumers. The Court found that Plaintiff's claim was essentially a claim for a violation of the Food, Drug, and Cosmetic Act for which there is no private right of action. Plaintiff's CSPA claims would not exist if not for the violation of the FDCA, and parties are precluded from using other statutes as a vehicle to bring a private action based upon a violation of the FDCA.
American Home Mortgage Servicing, Inc. v. State of Ohio
. Franklin Cty. Case No. 09-CVH-11-16491. PIF 2982
Plaintiff agrees to: 1) not use language in its modification, forbearance, security retention, or other loss mitigation agreements which states that the borrower has no right of set-off or counterclaim or any defense to the obligations of the note or security instrument; 2) participate in good faith in programs to assist Ohio homeowners in distress and to provide the Attorney General with quarterly reports listing the programs in which it participates; 3) provide consumers with a single point of contact after a consumer has requested assistance to avoid foreclosure; 4) abide by the guidelines and time frames for all loan modification requests as set forth by the MHA Handbook, consisting of: a) requesting HAMP Request for Modification and affidavit, IRS form 4506T-EZ or 4506-T, Dodd-Frank certification, income documentation, and any other documents required under HAMP; b) cease collection calls 7 days after receipt of a complete HAMP package; c) acknowledge receipt of the Initial HAMP package within 10 days of receipt; d) review the package for completeness and eligibility within 30 days and either issue a trial period plan notice, issue a non-approval notice, or issue an incomplete information notice; e) review denials for HAMP loan modifications to confirm that the loan is ineligible; f) review applications for eligibility for other programs if denied for a HAMP loan modification; g) provide borrowers until the last day of the month in which the first payment under a HAMP modification is due to make the first payment, or 10 days from the offer of a loan modification other than HAMP to make the first payment; h) if a borrower fails to respond to a loan modification offer during the allotted timeframe, Plaintiff shall be entitled to pursue ordinary course servicing practices; i) if a property is owner-occupied and the borrower has submitted a complete HAMP package or other non-HAMP application, Plaintiff shall promptly suspend all ongoing foreclosure proceedings and refrain from initiating any new foreclosure proceedings until a determination of whether the borrower is eligible for a loan modification is made.
TELEPHONE CONSUMER PROTECTION ACT
Mims v. Arrow Financial Services, LLC
, US S. Ct. Case No. 10-1195, PIF 2993
The Supreme Court held that federal courts retain concurrent jurisdiction with state courts over private rights of action arising out of the Telephone Consumer Protection Act.