The U.S. Court of Appeals for the Seventh Circuit recently held that in the absence of an FDCPA-specific rule regarding “present right to possession,” the Court must look to state law to determine whether a repossessor has a present right to possess the property at the time it was seized.
Posts tagged as “Auto Finance”
The U.S. Court of Appeals for the Third Circuit recently held, in a case of first impression in that circuit, that a secured creditor’s failure to turn over collateral repossessed prior to the filing of the bankruptcy petition does not violate the automatic stay. A copy of the opinion in In re Denby-Peterson is available at: Link to Opinion. The debtor’s automobile was repossessed after she defaulted on her installment loan. She then filed a voluntary petition under Chapter 13 of the Bankruptcy Code, notified her creditors and demanded the return of the automobile. The creditors did not comply, and the…
The Supreme Court of New Jersey held that where a plaintiff challenges the validity of a transaction as a whole and not specifically the arbitration agreement that is included as part of a transaction, the plaintiff must arbitrate their claims because an arbitration agreement is severable and enforceable, notwithstanding a plaintiff’s general claims about the invalidity of the transaction as a whole. Accordingly, the judgment of the appellate court was reversed and the trial court orders compelling arbitration were reinstated. A copy of the opinion in Goffe v. Foulke Management Corp. is available at: Link to Opinion. The plaintiffs each purchased cars…
The Supreme Court of Missouri recently held that a trial court abused its discretion by certifying an overly broad class with a class representative whose claims against the debt collector defendant were not typical of the class. More specifically, the class definition was deemed overbroad because approximately 87 percent of the class members’ claims were either precluded by final deficiency judgments, or estopped by their failure to disclose the claims in bankruptcy, and the class representative failed to meet typicality requirements, because she did not suffer the same alleged injury as the class members. A copy of the opinion in…
The U.S. Court of Appeals for the Seventh Circuit held that merely requiring extrinsic evidence to interpret a provision of a form contract does not render class certification improper, and that absent a more thorough explanation of its reasoning from the trial court, it could not uphold the trial court’s ruling decertifying the class. As a result, the Seventh Circuit vacated the decision of the trial court and remanded for further proceedings. A copy of the opinion in Red Barn Motors, Inc. v. NextGear Capital, Inc. is available at: Link to Opinion. The plaintiff auto dealerships entered into demand promissory note…
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…