In an unpublished opinion, the U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s order denying an auto finance company’s motion to compel arbitration pursuant to the terms of a retail installment sales contract with a consumer. In so ruling, the Eleventh Circuit concluded that the consumer’s TCPA claims were an independent cause of action based on rights created under the TCPA, and not subject to the arbitration provision that only covered disputes arising from or related to the agreement or the motor vehicle collateral. A copy of the opinion in Hope Gamble v. New England…
Posts published in “Auto Finance”
The District Court of Appeal of the State of Florida, Fourth District recently affirmed entry of summary judgment in favor of a motor vehicle retail seller and assignee against a consumer who alleged that the 27.81 percent interest charge under the retail installment contract (“RIC”) exceeded the interest rate limit imposed by Florida’s usury statute. In so ruling, the Court concluded that the financing contract at issue was not subject to the interest rate limit imposed by Florida’s general usury statute, but instead by the specific controlling statute, the Florida Motor Vehicle Retail Sales Finance Act. A copy of the…
The California Court of Appeal for the Second District recently held that a correction offer under the California Consumer Legal Remedies Act did not prevent a consumer from pursuing causes of action for fraud and violation of the California Unfair Competition Law based on the same conduct because the CLRA’s remedies are cumulative and non-exhaustive. A copy of the opinion in Flores v. Southcoast Automotive Liquidators, Inc. is available at: Link to Opinion. An automotive dealer published print advertisements showing low prices for specific cars to attract customers to the dealership. Small print at the bottom of the advertisements stated that the…
The U.S. Court of Appeals for the Third Circuit recently reversed an order denying a motion to compel production of a marketing database of putative class members in a federal Telephone Consumer Protection Act (TCPA) lawsuit. In so ruling, the Third Circuit held that: (1) defendants arguing that a class is not ascertainable should be required to produce information in its possession about putative class members during discovery, and (2) although affidavits from potential class members alone do not satisfy the ascertainability standard for class certification, such affidavits in combination with other records can meet the ascertainability standard. A copy of…
The U.S. District Court for the Middle District of Tennessee recently held that a creditor complied with the federal Electronic Funds Transfer Act when it obtained verbal authorization to accept the consumer’s electronic fund transfer and request for enrollment into an autopay system. In so ruling, the Court held that the creditor was not required to send the consumer a copy of his electronic signature (the recording). Instead, the Court held, the written confirmation of enrollment need only include the material terms of the autopay system, and sending the confirmation of enrollment within two business days of the date of…
Fla. App. Court (3rd DCA) Holds Non-English Speakers Could Not Avoid English Language Contract Terms
Fla. App. Court (3rd DCA) Holds Non-English Speakers Could Not Avoid English Language Contract Terms
The Third District Court of Appeal of the State of Florida recently reversed a trial court’s denial of a car dealership’s motion to compel arbitration, holding that because there was no evidence that the buyers, who did not read or speak English, attempted to learn or have explained to them what they were signing, or that the dealer’s representatives prevented them from doing so or misrepresented the terms, the trial court erred by finding there was no valid agreement to arbitrate. A copy of the opinion in Kendall Imports, LLC v. Diaz, et al. is available at: Link to Opinion.…
The California Court of Appeal, Fourth Appellate District, recently held that a successful consumer plaintiff was entitled to $185,000 in attorney’s fees and costs, even though she rejected a settlement offer containing an appropriate remedy before she filed suit. In so ruling, the Court held that rejecting the pre-litigation settlement offer was not unreasonable, as the offer required the consumer to agree to a broad release of claims and a confidentiality clause, and especially as the confidentiality provision in particular was unlawful as to the consumer’s Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq. (“Song-Beverly Act”) claims.…
9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car
9th Cir. Holds Car Dealer Failed to Provide ‘Completed Inspection Report’ as to ‘Certified’ Used Car
The U.S. Court of Appeals for the Ninth Circuit recently held that a car dealership inspection certificate violated California statutory law that required that a vehicle seller provide a “completed inspection report” prior to the sale of any “certified” used car.
The Appellate Court of Illinois, Second District, recently held that an erroneous advertisement that misstated the price of a vehicle did not constitute an offer that could be accepted to form a contract, and did not constitute a UDAP violation. A copy of the opinion in Burkhart v. Wolf Motors of Naperville, Inc. is available at: Link to Opinion. The plaintiff car buyer saw an advertisement online for a vehicle and contacted the defendant car dealership to purchase the vehicle at the advertised price. The car dealer explained to her that the price of the vehicle was $36,991 and the price…
The U.S. Court of Appeals for the Sixth Circuit recently held that an automobile dealer is a “creditor” under the federal Equal Credit Opportunity Act that was not excepted from the requirement to provide adverse action notices, as the dealer did not “merely arrange for credit by referring applicants to lenders” as provided under Regulation B. The Court also reversed the district court’s ruling that injunctive relief was not an available remedy under ECOA and also reversed summary judgment in the dealer’s favor on the plaintiff’s state-law conversion claim, remanding the case for further proceedings on those claims. A copy…
The Court of Appeal of the State of California, Second District, recently held that the California Rees-Levering Motor Vehicle Sales and Finance Act, Calif. Civil Code, § 2981, et seq. (“Rees-Levering Act”) does not require a post-dated check provided at the time of sale to be categorized as a “deferred down payment” on the sales contract. A copy of the opinion in Nichols v. Century West is available at: Link to Opinion. The plaintiff purchased a car from the defendant car dealer using three checks as down payment. Two of the checks were dated the day after the contract was signed, and…