Justia Consumer Law Opinion Summaries

The Supreme Court considered a question certified by the circuit court and answered that the deceptive trade practices provisions of the West Virginia Consumer Credit and Protection Act (the Act), W. Va. Code 46A-6-101 to -106, do not apply to educational and recreational services offered by a religious institution.The Attorney General sued the Diocese of Wheeling-Charleston and Michael Bransfield, in his capacity as former bishop of the Diocese, alleging (1) the Diocese knowingly employed persons who admitted to sexually abusing others or who were credibly accused of sexual abuse at its camps and schools, and (2) by misrepresenting or hiding that danger, the Diocese violated the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act. The circuit court dismissed the Attorney General's claims but stayed its order and certified a question of law to the Supreme Court. The Supreme Court answered the question in the negative, holding that the deceptive practices provisions of the Act do not apply to educational and recreational services offered by a religious institution. View "State ex rel. Morrisey v. Diocese of Wheeling-Charleston" on Justia Law

The Ninth Circuit filed: (1) an order granting a request for publication, withdrawing the mandate, withdrawing a memorandum disposition, and replacing the memorandum disposition with an opinion; and (2) an opinion reversing the district court's grant of summary judgment in favor of the defendant debt collector in an action under the Fair Debt Collection Practices Act (FDCPA) and remanding for further proceedings.The panel agreed with the Eleventh Circuit and held that the FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in the accounts assigned for collection without waiting to receive a response before instituting collection efforts. Accordingly, the panel reversed the district court's grant of summary judgment for NBF concluding that NBF was entitled to the defense because it employed a procedure reasonably adapted to avoid errors of the type that occurred in plaintiff's case. Rather, the panel concluded that the two procedures NBF relied upon did little more than evidence an attempt to outsource the duties the FDCPA imposes upon debt collectors. View "Urbina v. National Business Factors Inc." on Justia Law

After plaintiff filed suit under the Song-Beverly Consumer Warranty Act, commonly known as the "lemon law," the jury awarded her the full purchase price of her defective vehicle, offset by mileage accrued before she first delivered it for repair, plus incidental and consequential damages and a civil penalty. The trial court subsequently denied defendant's motion to reduce plaintiff's damages by the credit she received towards the purchase price of a new vehicle when she traded in her defective vehicle to a GMC dealer.As a matter of first impression, the Court of Appeal held that the Act's restitution remedy, set at "an amount equal to the actual price paid or payable" for the vehicle, does not include amounts a plaintiff has already recovered by trading in the vehicle at issue. The court stated that the Legislature chose to call the Act's refund remedy "restitution," indicating an intent to restore a plaintiff to the financial position in which she would have been had she not purchased the vehicle. Therefore, granting plaintiff a full refund from defendant in addition to the proceeds of the trade-in would put her in a better position than had she never purchased the vehicle, a result inconsistent with "restitution." The court also held that allowing plaintiff a full refund also would undercut other parts of the Act. Therefore, the court reduced the damage award to reflect the value of plaintiff's trade-in and reduced the civil penalty. The court affirmed the judgment as modified. View "Niedermeier v. FCA US LLC" on Justia Law

In this lawsuit brought against Johnson & Johnson, Inc. and other entities (collectively, Defendants) alleging state tort claims due to injuries caused by a Class III medical device the Supreme Court reversed the judgment of the trial court granting Defendants' motion for judgment on the pleadings based on federal preemption of all claims, holding that, under Kentucky's notice pleading standards, the motion for judgment on the pleadings should have been denied.In their complaint, Plaintiffs asserted claims for, inter alia, strict liability negligence, and lack of informed consent. Defendants moved for judgment on the pleadings based on federal preemption of all claims. The trial court granted the motion and dismissed all of Plaintiffs' claims. The court of appeals affirmed. The Supreme Court reversed, holding that, under Kentucky's notice pleading standard, Plaintiffs' complaint sufficiently put Defendants on notice of parallel claims under Kentucky law that may not be preempted. View "Russell v. Johnson & Johnson Inc." on Justia Law

Birmingham law firm Campbell Law, P.C., represented consumers in legal proceedings against pest-control companies, including The Terminix International Co., LP, and Terminix International, Inc. (collectively referred to as "Terminix"). After Campbell Law initiated arbitration proceedings against Terminix and Matthew Cunningham, a Terminix branch manager, on behalf of owners in the Bay Forest condominium complex ("Bay Forest") in Daphne, Terminix and Cunningham asked the circuit court to disqualify Campbell Law from the proceedings because it had retained a former manager of Terminix's Baldwin County office as an investigator and consultant. The trial court denied the motion to disqualify. Terminix and Cunningham petitioned the Alabama Supreme Court for a writ of mandamus, arguing that the Alabama Rules of Professional Conduct required Campbell Law's disqualification. In support of their petition, Terminix argued the investigator/consultant possessed privileged and confidential information related to disputes between Terminix and parties represented by the law firm, and that Campbell Law violated the Rules of Professional Conduct. The Supreme Court concluded the petitioners did not demonstrate Campbell Law violated the Rules, thus did not establish they had a clear legal right to mandamus relief. The petition was denied. View "Ex parte The Terminix International Co., LP, et al." on Justia Law

The Supreme Judicial Court held that the $1.25 fee cap set forth in Mass. Gen. Laws ch. 262, 41 applies only to a particular notarial act known as "noting," and that the meaning of that section has not been expanded to include all notarial acts.The question at issue in this case arose in connection with a lawsuit in which Plaintiff alleged that Defendants - The UPS Store, Inc., and J&V Logistics LLC, the franchise owner - overcharged him for notary services. Plaintiff alleged violations of Mass. Gen. Laws ch. 262, 41 and Mass. Gen. Laws ch. 93A. Defendants removed the case to the federal district court. Thereafter, Defendants moved to certify to the Supreme Judicial Court the question of whether section 41 applies to all notarial acts, as argued by Plaintiff. The district court certified the question. The Supreme Judicial Court held that Mass. Gen. Laws ch. 262, 41 and 43 to not proscribe fees for acts unrelated to the protest of a negotiable instrumented that, aside from section 41, there are currently no statutes or executive orders that cap fees for any other notarial act. View "Richardson v. UPS Store, Inc." on Justia Law

Robert V. Bolinske, Sr., appealed an order denying his motion to vacate a default judgment. Discover Bank (“Discover”) sued Bolinske for unpaid debt in the amount of $3,915.53 on a credit card Discover issued to Bolinske. Notice of entry of judgment was served on Bolinske on December 23, 2019. Bolinske moved to vacate judgment on January 10, 2020. Bolinske claimed he attempted to respond to Discover’s summons and complaint by mail on December 6, 2019, but accidentally misaddressed the envelope to Discover’s counsel and sent his answer and counterclaims to an incorrect address. Bolinske argued after his answer and counterclaims were returned as undelivered, he mailed them to the proper address on December 16, 2019. Bolinske argued that same day, he placed a call to Discover’s counsel and left a voicemail stating that he was making an appearance to avoid a default judgment and explaining he had sent his answer and counterclaim to the wrong address. Discover’s counsel asserted she did not receive Bolinske’s voicemail until after e-filing the motion for default judgment, but acknowledged the voicemail was received on December 16. Bolinske argued in his brief supporting his motion to vacate that his voicemail left with Discover’s counsel constituted an appearance entitling him to notice before entry of default. Bolinske also argued that he was entitled to relief from judgment due to his mistake, inadvertence, and excusable neglect. The district court denied Bolinske’s motion on January 31, 2020 without holding a hearing, stating Bolinske had not demonstrated sufficient justification to set the judgment aside. Fining no reversible error in the district court judgment, the North Dakota Supreme Court affirmed. View "Discover Bank v. Bolinske, Sr." on Justia Law

A jury held defendant FCA US, LLC (Chrysler) liable on three causes of action arising from plaintiff Jose Santana’s defective vehicle: breach of the express and implied warranty under the Song-Beverly Consumer Warranty Act, and fraudulent concealment. After an award of fees and costs, the total judgment amounted to $1,740,169.58. Chrysler contended most of those damages should have been vacated because there was no substantial evidence of fraudulent concealment. To this, the Court of Appeal agreed: Santana’s fraud theory was that Chrysler concealed an electrical defect in Santana’s vehicle. But the Court found there was no evidence Chrysler was aware of the defect until after Santana purchased his vehicle, and thus no evidence that Chrysler concealed it. Because the fraud judgment could not be supported, the separate award of economic damages, the noneconomic damages, and the punitive damages fell with it. In addition, Chrysler contended there was no evidence of a willful violation of the Song-Beverly Act. To this the Court disagreed, finding that by the time Chrysler’s duty to repurchase arose, it was aware of the electrical defect in Santana’s vehicle, which it chose not to repair adequately. The Court affirmed the trial court in all other respects, and remanded the case for the trial court to enter judgment in favor of Chrysler on the fraud cause of action, striking the additional economic damages of $33,839.91, the noneconomic damages of $100,000, and the punitive damages of $1 million. View "Santana v. FCA US, LLC" on Justia Law

In this dispute arising from a fatal treadmill injury, the Supreme Court held that the entity that purchased the treadmill manufacturer's assets did not assume an implied warranty of merchantability that attached, and was not disclaimed, when the manufacturer sold the treadmill.The Seller in this case manufactured and sold treatments. The Buyer purchased the Seller's assets and assumed certain of its liability and obligations, as identified in the asset-purchase agreement. While using a treatment the Seller had previously sold to a gym, Audrey Kouba fell and sustained fatal injuries. Kouba's heirs sued the Buyer for negligence, strict liability, and breach of the implied warranty of merchantability. The trial court granted summary judgment for the Buyer on all claims. The court of appeals reversed as to the implied warranty of merchantability claim, holding that, under the asset-purchase agreement's terms, the Buyer assumed liability for implied warranties. The Supreme Court reversed, holding (1) an asset purchaser inherits none of the asset seller's liability absent an agreement to do so; and (2) based on the plain and unambiguous language of the asset-purchase agreement, the Buyer's express assumption of the written warranty for repair or replacement of defective treatment parts was not an assumption of the implied warranty of merchantiability. View "Northland Industries, Inc. v. Kouba" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for Ocwen in an action brought by plaintiffs, alleging violation of the Fair Credit Reporting Act's prohibition against obtaining a consumer credit report without a permissible purpose. Specifically, plaintiffs alleged that Ocwen willfully violated the FCRA when it obtained credit reports about consumers whose mortgage loans had been discharged in bankruptcy.The panel encouraged courts in this circuit to determine whether the defendant committed a violation of the FCRA before turning to questions of negligence and willfulness. In this case, Ocwen was permitted under 15 U.S.C. 1681b(a)(3)(A) to review plaintiffs' accounts and credit reports to determine whether it could offer them alternatives to foreclosure, and it thus did not violate the Act. Therefore, the issue of willfulness is essentially moot. However, for the sake of completeness, and at the risk of stating the obvious, the panel noted its agreement with the district court that Ocwen did not willfully violate the FCRA. View "Marino v. Ocwen Loan Servicing LLC" on Justia Law