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Tag Archives: Consumer Protection Statutes

Seventh Circuit Limits Application of State Consumer Act

Posted in State Consumer Protection Laws

The United States Court of Appeals for the Seventh Circuit granted summary judgment in favor of Home Depot in a case limiting the application of the Wisconsin Consumer Act. Plaintiffs had argued that Home Depot’s failure to remove a credit card charge of $9,761.64 on a Home Depot credit card issued by Citibank violated sections 427.104(1)(c), 427.104(1)(j), and 427.108 of the Act. The Court affirmed the lower court and ruled that the Act did not create a cause of action for the plaintiffs against Home Depot.

In 2002, plaintiffs applied for and received a Home Depot co-branded credit card issued by Citibank. The card could only be used for Home Depot purchases. Plaintiffs entered into an agreement with Dr. Lee Krahenbuhl such that Krahenbuhl would purchase the materials for and build a log cabin and plaintiffs’ company would resell the cabin. Krahenbuhl used his own Home Depot/Citibank credit card to purchase a log cabin package. These materials were delivered to and signed for by plaintiff or an authorized representative of their company. Plaintiffs and Krahenbuhl terminated their relationship and Krahenbuhl disputed the $9,761.64 charge on his account. Citibank investigated the charge and transferred the charge from Krahenbuhl to the plaintiffs’ Home Depot account. Plaintiffs claim that they did not become aware of the transferred charge until a year later. The balance accrued interest and eventually grew to approximately $21,000. Plaintiffs were unable to pay and their credit deteriorated.

Plaintiffs brought suit, alleging that Home Depot violated sections 427.104(1)(c), 427.104(1)(j), and 427.108 of the Act. Section 427.104(1)(c) of the Act prohibits a debt collector from threatening to enforce a right with knowledge or reason to know that the right does not exist. Section 427.104(1)(j) of the Act prohibits the disclosure of or the threat to disclose information adversely affecting the reputation for creditworthiness with the knowledge or reason to know that the information is false. Section 421.108 of the Act creates a general obligation of good faith in every agreement or duty involving a consumer credit transaction.

The Court stated that the “critical issue” of the case was “whether or not the [plaintiffs] presented sufficient evidence upon which a jury could conclude that Home Depot was acting to collect a debt.” It found that the statute “at a minimum” required some attempt by Home Depot to collect the debt. In this case, the Court found that Citibank, not Home Depot, was owed the debt. Although the credit card had Home Depot’s name on it, the Court found that Home Depot did not extend any credit to the plaintiffs and did not have an agency relationship with Citibank. Thus, a “reasonable jury could not conclude that Home Depot violated the Wisconsin Consumer Act.”

Second Circuit: Lawsuit During FDCPA Validation Period Overshadows Notice

Posted in Fair Debt Collection Practices Act

A recent case out of Connecticut waves a yellow flag at debt collectors who file lawsuits within 30 days of sending a consumer a validation notice under the Fair Debt Collections Practices Act (“FDCPA”). On January 13, 2010, the Second Circuit Court of Appeals held that a law firm and two of its lawyers violated the FDCPA, 15 U.S.C. § 1692 et. seq., when it filed suit against a debtor during the 30-day validation period without providing additional explanation to the debtor about how the lawsuit affected the notice. Ellis v. Solomon and Solomon, P.C., et. al., No. 09-1247-cv (2d Cir. Jan. 13, 2010).

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Alaska Supreme Court Rejects Debt Collector’s Argument That Constitutional Right To Petition The Government Is Infringed By Alaska’s Consumer Protection Statute

Posted in Fair Debt Collection Practices Act

In a recent decision, the Alaska Supreme Court found that requiring a debt collector and attorneys to comply with Alaska’s Unfair Trade Practices and Consumer Protection Act (UPTA) does not infringe on their Constitutional right to petition the government as set out in the Noerr-Pennington doctrine. (Pepper v. Routh Crabtree, APC, et al., No. 6437 (Nov. 20, 2009).

In Pepper, plaintiff Robin Pepper allegedly wrote 15 bad checks. The affected merchants assigned the dishonored checks to CRI, LLC (“Checkrite”) for collection, who retained the Routh Crabtree APC law firm to recover the debt. Routh Crabtree sent a demand letter to Pepper to an address that did not appear on the dishonored checks, was not an address at which Pepper had ever lived and did not appear to correspond to an actual building. When Pepper did not pay the debt, Routh Crabtree filed suit in state court to collect the debt and personally served Pepper with the summons. The Alaska Legal Services Corporation (ALSC) notified Routh Crabtree that it would be representing Pepper, but that there was insufficient service of process therefore Pepper would not be filing an answer. Without notifying ALSC, Checkrite sought the entry of default judgment against Pepper, which the court entered. Thereafter, Checkrite withdrew its petition for default judgment. On that same day, Pepper sued Routh Crabtree, the attorney Richard Crabtree and Checkrite in state court, alleging that the following three acts constituted “unfair or deceptive acts or practices” in violation of the UTPA: (1) the written demand was in violation of Alaska law (AS 09.68.115) which requires that written demands be personally delivered or sent via first class mail to “the address shown on the dishonored check”; (2) Pepper is mentally disabled and therefore defendants made a false averment to the court when they stated that she was competent; and (3) the attorney defendants violated Alaska law that required them to notify Pepper’s attorney before applying for entry of default judgment.

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