Posts tagged auto fraud
Let's Start a Nonprofit Law Firm

We settled a case yesterday and I want to tell you about it. Almost two years ago, we sued a car dealer for wrongfully repossessing our client’s car. Yesterday, our client went to pick up that car, which she will own free and clear instead of paying 25% interest on the buy-here-pay-here auto financing. Additionally, over the next two and a half years, my client will receive a few thousand dollars and my firm will recoup a little over $10,000 in attorney’s fees and expenses. 

Let me say thank you to some people who need thanking by making a couple of points about this settlement. Then, I want to tell you about a nonprofit law firm I’m starting in 2017 called Commonwealth Justice. 

First, this repossession had a huge impact on my client’s life. Like many people, when my client lost a reliable form of transportation, it set off a cascade of negative consequences in her life. Because she lost her only car, she could no longer hold down one of the two jobs she was working at the time. Because she lost one of her two jobs, she wasn’t able to make rent and had to leave her apartment. For a year, she lived with her minister and his family. She wasn’t able to transport her daughter to the far-away clinic to treat a chronic medical condition. Wrongful, abusive repossessions create huge problems in individual’s lives and—based on the number of people we have contacting my firm—are a widespread problem in our state. 

This settlement doesn’t come close to compensating my client for the violent upheaval this repossession caused in my client’s life. But, collection of a larger sum from the dealer was going to be challenging and, as in most settlements, we weighed the value of the prospect of recovering more money later versus some money in the near future and decided the risk of pursuing a larger sum of money wasn’t worth the benefit. 

The only way we were able to get this case settled is because Josh Goodnewt did an outstanding job getting summary judgment granted in our client’s favor on her Truth in Lending Act claim and having the Defendant’s counterclaims for fraud and breach of contract thrown out with a separate Motion for Summary Judgment. Josh is a brilliant, thorough, passionate attorney and I miss him every day. 

Are you kidding me? 

Are you kidding me? 

The only way that we are able to afford to settle cases in a way that spreads out the payments to my firm over two and a half years is because I  have a wife with a steady job and health insurance benefits. In other words, without Sarah, I don’t have the luxury of a) reducing the amount of attorney’s fees I recover and b) agreeing to accept that amount over two and a half years. Sarah makes Ben Carter Law possible and anyone who likes the work that we do needs to know that it doesn’t happen without her. 

Now, to Commonwealth Justice: 

We need more people working on behalf of consumers in Kentucky and defending them from debt collection abuse, unscrupulous landlords, reckless mortgage servicers, and car dealers that put profits over people.  

I have had a lot of opportunity as a Legal Aid attorney and as a private attorney to reflect on why more attorneys do not practice in the area of consumer law in Kentucky. I think there are two main reasons. 

First, consumer law is a challenging area of law. Lots of federal statutes. Lots of regulations. Lots of math. It’s not easy to gain the substantive knowledge you need to succeed in this field. Most people can only do it by—like me—starting at Legal Aid. 

Second, even if they learn the law, not many attorneys have the financial ability to defer payment on a case over the course of two and a half years. I can do it because UK gave me a scholarship to law school and I have a beautiful wife with a steady job. 

Nevertheless, my experience with Ben Carter Law over the last four years proves that consumer attorneys can make money in Kentucky. Last year—the fourth full year of Ben Carter Law—we had enough money to pay modest but nontrivial salaries to Josh and me and for the briefest of time employed a paralegal, as well. We may need to be flexible in how we settle some cases and sometimes cash flow is challenging, but—over time—it is possible for attorneys to make it in this area. 

So, the way I see it: the two main barriers to entry into the consumer law field are 1) lack of opportunity to learn the substance of the law and gain litigation experience and 2) the inability, at the outset, to make the financial tenuousness of a consumer practice work.   

Over the next few weeks and months, you will hear more from me about Commonwealth Justice, a nonprofit law firm I am committed to start in 2017. My hope is that this nonprofit law firm will address both barriers to entry for attorneys wanting to get started in consumer law. By raising funds from individual donors and with grants from foundations, I hope to be able to provide attorneys with the opportunity to develop substantive experience in consumer law. Over time, the goal will be to supplement the organization’s budget with the recovery of attorneys fees in many of our cases. Meanwhile, the support from our donors will provide us the runway necessary to get this plane off the ground. 

Over time, I believe that an organization like Commonwealth Justice can be a game changer for low- and middle-income Kentuckians whose financial or familial stability is threatened by a wrongful repossession, an abusive debt collector, or a corner-cutting landlord. By expanding the number of attorneys working in this field, we can expand the number of people we help, the number of cases that go to trial, and the number of cases that establish valuable precedent to guide the conduct of business owners around the Commonwealth. 

So, stay tuned. And, if you’re interested in helping in any way, I’m easy to find.  

Defining "Consumer Law"

When people ask me what I do, I usually tell them, "I make bad jokes on the internet." When they ask me what I do for money, I tell them I'm a consumer lawyer. If they're not too proud to admit to not knowing what consumer law is, they'll ask, "What is consumer law?" 

Here is a little mailer I sent out to fellow lawyers last year explaining what kinds of cases I handle as a "consumer lawyer".

Somehow, though, I think that just describing the kind of work that consumer lawyers do and the kinds of cases they take misses the point a bit. It gets to the what, but not the why of consumer law. 

But, I recently had the opportunity to speak to about a hundred newly-minted attorneys at the KBA's New Lawyer Program about Kentucky consumer law. My Lebowski-themed presentation about consumer law touched on many of the same areas I listed in the mailer: the Kentucky Consumer Protection Act, debt collection abuse, insurance bad faith, auto fraud, the Kentucky Lemon Law, etc. 

Before I ran through those specific state and federal statutes protecting consumers, though, I gave Kentucky's newest lawyers my freshest take on what consumer law is. I told them that being a consumer lawyer means applying all of your skill, training, and heart to the legal problems that impact low- and middle-income Americans. It means using the laws (common, local, state, and federal) to protect the bottom lines of the most fragile budgets in America. 

Rather than defining consumer law as a kind of case or a particular set of statutes, I want to broaden my definition of consumer law to "practicing law with the goal of helping low- and middle-income American families achieve and sustain financial stability". 

This definition allows me a broader self-concept of "what I do", aligns me more explicitly with the work of allies seeking those same ends through lobbying and public education efforts (rather than my more litigious efforts), and provides me a "North Star" when charting the work I want my firm to do. way forward for my firm. helps me evaluate the direction I want to take my firm. Anything that threatens the financial stability of economically vulnerable people—foreclosure, eviction, abusive debt collection, auto fraud, unfair or misleading business practices, repossession, bad faith claims adjusting from insurance companies—that's what I fight.

Practicing with a goal of helping people avoid the threats to their bottom line motivates me to pay attention to the evolving landscape of threats out there. Every year, it seems, there's a new problem, whether it's vacant and abandoned property, unpaid tax bills on real estate, starter interrupt devices on cars. There's a scammer born every minute. 

Practicing consumer law is much, much broader than using the statutes we typically think of when we think of "consumer law" statutes. It means aligning yourself with  economically fragile families and individuals and using the best, bravest version of yourself to defend them from the flinty-eyed predators stalking your clients and senseless corporate machinery that will consume them without ever thinking once.

Kentucky Consumer Law Outline

Tomorrow, I have the opportunity to talk for an hour about consumer law at the Kentucky Bar Association's New Lawyers Program. In anticipation of the presentation (and so I didn't have to fill my slides with text), I prepared a non-comprehensive outline about many of the common law causes of action, state laws, and federal statues that constitute "Consumer Law". 

Below is the outline with some hyperlinks, but because the formatting will never be right in this post, here is a .pdf of the Kentucky Consumer Law Outline. Use it instead. In case you thought it might be, I need to say that this consumer law outline is absolutely not legal advice, dummy.  

And, yes, the presentation will have a Lebowski theme. 

I  do  mind, man. The dude minds. This aggression will not stand, man. 

I do mind, man. The dude minds. This aggression will not stand, man. 

▾    1    Kentucky Consumer Protection Act

    ▾    1.1    Legislative Intent

        1.1.1    KRS 367.120 “The General Assembly finds that the public health, welfare and interest require a strong consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services…”

        1.1.2    “The Kentucky legislature created a statute which has the broadest application in order to give Kentucky consumers the broatest possible protection for allegedly illegal acts. In addition, KRS 446.080 requires the statutes of this Commonwealth are to be liberally construed.” Stevens v. Motorist Mutual Ins. Co., Ky. S.W. 2d 819 (1988). 

        1.2    Who is protected?

        1.2.1    Statutory Language

        1.2.1.1    Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by KRS 367.170, may bring an action under the Rules of Civil Procedure in the Circuit Court in which the seller or lessor resides or has his principal place of business or is doing business, or in the Circuit Court in which the purchaser or lessee of goods or services resides, or where the transaction in question occurred, to recover actual damages. The court may, in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper. Nothing in this subsection shall be construed to limit a person's right to seek punitive damages where appropriate. Ky. Rev. Stat. Ann. § 367.220

        1.3    Who’s Covered in Practice

        1.3.1    A person (not business) who “purchases or leases goods or services primarily for personal family, or household purposes”

        1.3.1.1    But the absence of a finding of a valid contract is not fatal to a claim for unfair trade practices under the KCPA as it would be to a breach of contract claim. Nothing in the KCPA—particularly KRS 367.170 and KRS 367.220—explicitly requires that a binding contract be reached for a purchaser damaged by unlawful trade practices to have a private right of action. Rather, because Piles and Warner qualified as purchasers under the KCPA, they were entitled to sue for any damages resulting from unfair trade practices by Sonny Bishop Cars under KRS 367.220. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 903 (Ky. 2008);

        1.3.2    Renters

        1.3.2.1    In both matters the tenant asserts that the landlord's failure to make needed repairs and his violations of the local housing code constitute unfair, false, misleading or deceptive acts. As a violation of a housing code does not create a cause of action in favor of the tenant, the failure of the landlord to comply with a housing code cannot be deceptive in the absence of an express covenant or agreement that the landlord would comply with such housing code. Likewise, in the absence of a duty or obligation *519  to make repairs to a rental unit, the failure to make such repairs cannot be construed to constitute an unfair, false, misleading or deceptive act. Miles v. Shauntee, 664 S.W.2d 512, 518-19 (Ky. 1983)

        1.3.3    Homebuyers/Homeowners

        1.3.3.1    “That brings us to the violation of the Kentucky Consumer Protection Act, KRS 367.110, et seq. The jury did make a finding of a breach, but with zero damages. We need not get into a discussion as to whether the verdict is an oxymoron because we do not believe that the Kentucky Consumer Protection Act applies to real estate transactions by an individual homeowner.” Craig v. Keene, 32 S.W.3d 90, 91 (Ky. Ct. App. 2000)

        1.3.3.2    Summary: Buyers of “as is” mobile home can still maintain causes of action for fraudulent misrepresentation and KCPA. Elendt v. Green Tree Servicing, LLC (Ky.App. 2014) 443 S.W.3d 612.

        1.3.4    People Seeking the Extension of Credit

        1.3.4.1    A federal court has interpreted case law and the KCPA to determine that the sale of credit, so long as it was purchased for personal use, is covered by KCPA. Stafford v. Cross Co. Bank, 262 F. Supp. 2d 776, 792-3 (W.D.Ky. 2003).

        1.3.5    Purchasers of Insurance Policies

        1.3.5.1    “It is the holding of this Court that the Kentucky Consumer Protection Act provides a homeowner with a remedy against the conduct of their own insurance company pursuant to KRS 367.220(1) and KRS 367.170.” Stevens v. Motorists Mut. Ins. Co., 759 S.W.2d 819, 821-22 (Ky. 1988)

        1.4    What are they protected from?

        1.4.1    Statutory Language

        1.4.1.1    KRS 367.170: (1) Unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

(2) For the purposes of this section, unfair shall be construed to mean unconscionable.

        1.4.1.2    “The terms ‘false, misleading and deceptive’ has sufficient meaning to be understood by a reasonably prudent person of common intelligence. Therefore, when the evidence creates an issue of fact, that any particular action is unfair, false, misleading or deceptive it is to be decided by a jury.” Stevens v. Motorist Mutual Ins. Co., 759 S.W.2d 819, 820 (Ky. 1988). 

        1.5    What are they not protected from?

        1.5.1    Not covered: incompetence

        1.5.1.1    “While there can be no doubt Gamble was initially buried in the wrong plot in contravention of the burial contract, ‘[n]ot every failure to perform a contract is sufficient to trigger application of the Consumer Protection Act. The statute requires some evidence of “unfair, false, misleading or deceptive acts” and does not apply to simple incompetent performance of contractual duties unless some element of intentional or grossly negligent conduct is also present.’” Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 546 (Ky. Ct. App. 2013) quoting Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 291 (Ky.1991).

        1.5.2    Not covered: “mere breach of promise”

        1.5.2.1    A mere breach of promise does not constitute an unfair, false, misleading or deceptive act. The facts in Miles v. Shauntee indicate that the landlord made assurances of repair which were never significantly honored or fulfilled. This Court cannot hold as a matter of law that such assurances constitute unfair, false, misleading or deceptive acts declared unlawful under the Consumer Protection Act. Miles v. Shauntee, 664 S.W.2d 512, 519 (Ky. 1983).

        1.5.2.2    But, breach of promise to do something in the future is actionable when there is no present intent to perform that future act.

        1.5.2.2.1    An accepted rule is, a misrepresentation, to be actional, must concern an existing or past fact, and not a future promise, prophecy, or opinion of a future event, unless declarant falsely represents his opinion of a future happening.” “One may commit ‘fraud in the inducement’ by making representations as to his future intentions when in fact he knew at the time the representations were made he had no intention of carrying them out.” 

PCR Contractors, Inc. v. Daniel, 354 S.W.3d 610, 614 (Ky. App. 2011) quoting Bear, Inc. v. Smith, 303 S.W.3d 137, 142, 614 (Ky. App. 2010).

        1.6    Damages

        1.6.1    Compensatory Damages

        1.6.1.1    Logical and natural consequences

        1.6.1.1.1    Diminished value

        1.6.1.1.2    Higher repair costs

        1.6.1.1.3    Time missed from work dealing with issue

        1.6.1.1.4    Inconvenience

        1.6.1.1.4.1    Clearly, the inconvenience award was not duplicative of the loss of use award. No loss of use award was permitted for Piles.21 Thus, without an inconvenience award to her, Piles would stand to recover no compensatory damages at all, despite testimony that she had to miss work and suffered difficulties at her job caused by constant telephoning and trips to the dealership. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 907 (Ky. 2008);

        1.6.1.2    Mental and emotional suffering

        1.6.1.2.1    No case that says damages for mental and emotional suffering are available under KCPA. No Kentucky case says they’re not. 

        1.6.1.2.1.1    “Defendants also assert that Plaintiffs are not entitled to mental suffering or emotional distress damages. Kentucky courts have been clear that these types of damages are not recoverable under a contract-type cause of action. See, e.g., Combs v. Southern Bell Tel. & Tel. Co., 38 S.W.2d 3, 5, 238 Ky. 341, 345-46 (Ky.1931). Plaintiffs cite no persuasive authority to the contrary. No Kentucky court has concluded that the KCPA entitles plaintiffs to mental suffering or emotional distress damages. This Court declines to do so now.” Peacock v. Damon Corp., 458 F. Supp. 2d 411, 420 (W.D. Ky. 2006);

        1.6.2    Rescission (equitable relief)

        KRS 367.220 explicitly allows the Court the power to “in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper.”

        1.6.3    Punitive Damages

        1.6.3.1    KRS 367.220(1): Nothing in this subsection shall be construed to limit a person’s right to seek punitive damages where appropriate. 

        1.6.3.2    Because actual damages will likely be relatively small, punitive damages in consumer cases can be larger than punitive damages in other kinds of cases.

        1.6.3.2.1    “It appears that the amount of the punitive damages award was rationally imposed by the jury to serve the deterrent effect for which punitive damages were designed, especially in consumer protection cases where the economic harm is relatively small.” Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906–07 (2008);

        1.6.3.2.2    The United States Supreme Court has provided three factors trial courts may consider:

1) the degree of reprehensibility of the conduct; 

2) the disparity between the actual harm and the punitive damages, generally expressed as a ratio; and

3) a comparison of penalties that could be imposed for similar conduct in similar analogous cases.   

Paraphrasing BMW v. Gore, 116 S.Ct. 1589, 1598–99 (1996.)

Of these three factors, the first—the degree of reprehensibility of the conduct—is the most important. See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 419 (2003)

        1.6.4    Attorney’s fees should be included in the damages awarded when determining the reasonableness of the ratio between actual harm and punitive damages.

        1.6.4.1    In Willow Inn, Inc. v. Public Service Mut. Ins. Co., the Third Circuit Court of Appeals included the attorney’s fees into the ratio calculus of an insurance bad faith case (called a Section 8371 action in Pennsylvania). It explained, “Section 8371's attorney fees and costs provisions vindicate the statute's policy by enabling plaintiffs such as Willow Inn to bring § 8371 actions alleging bad faith delays to secure counsel on a contingency fee. Moreover, “one function of punitive-damages awards is to relieve the pressures on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes,” Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676 (7th Cir.2003), and the structure of § 8371 enlists counsel to perform a filtering function akin to prosecutorial discretion, because rational attorneys will refuse to work on a contingent fee arrangement when their investigation reveals the bad faith allegations of prospective clients to be meritless.” Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 236 (3d Cir. 2005).

        1.6.4.2    The Third Circuit noted that its decision to include attorney’s fees in the ratio analysis “is supported in the case law” and explained that a recent Pennsylvania state court decision also included the attorney’s fees incurred in a bad faith claim in the ratio analysis. This position has also been adopted by the 11th Circuit in Action Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d 1302 (11th Cir. 2007) and Illinois state courts in Kirkpatrick v. Strosberg, 894 N.E.2d 781 (Ill. App. Ct. 2008).

        1.6.5    Attorney’s Fees

        1.6.5.1    KRS 367.220(3) In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney's fees and costs.

        1.6.5.2    The seminal case on the award of fees pursuant to the Kentucky Consumer Protection Act is Alexander v. S&M Motors, Inc., 28 S.W.3d 303 (Ky. 2000). That case holds that the award of fees is in the sound discretion of the trial court. In Alexander, the Kentucky Supreme Court explained that permitting the additional recovery of attorney’s fees in consumer protection cases serves two purposes. First, it is “intended to compensate the prevailing party for the expense of bringing an action under the statute.” The Court continued, “[a] further aim is to provide attorneys with incentive for representing litigants who assert claims which serve an ultimate public purpose (i.e. a deterrent to conduct resulting in unfair trade practices which perpetrate fraud and deception upon the public.)” Alexander at 305.;

        1.6.5.3    Attorney’s fees are determined by using the “lodestar method”

        1.6.5.3.1    In Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), the United States Supreme Court noted that “the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”

        1.6.5.3.2    You must keep your time contemporaneously. I suggest using a time-tracking service like Harvest (https://www.getharvest.com/) to capture and track time. 

▾    2    Kentucky Lemon Law (KRS 367.840, et seq.)

    ▾    2.1    Purpose

    •    2.1.1    Kentucky’s “Lemon Law” is intended to accomplish three goals: (1) To protect consumers who buy or lease new motor vehicles that do not conform to applicable warranties by holding manufacturers accountable for certain nonconformities; (2) To limit the number of attempts and the amount of times that a manufacturer or its agents shall have to cure such nonconformities; and (3) To require manufacturers to provide, in as expeditious a manner as possible, a refund, not to exceed the amount in KRS 367.842, or replacement vehicle that is acceptable to the aggrieved consumer when the manufacturer or its agents fail to cure any nonconformity within the specified limits.

Ky. Rev. Stat. Ann. § 367.840

        2.1.2    Note: the Magnuson-Moss Warranty Act (15 USC § 2301, et seq.) may also offer remedies for breach of warranty issues arising from the sale of a new vehicle. 

        2.2    Application

        2.2.1    Kentucky’s Lemon Law applies to new motor vehicles and not to: (a) Any vehicle substantially altered after its initial sale from a dealer to an individual; (b) Motor homes; (c) Motorcycles; (d) Mopeds; (e) Farm tractors and other machines used in the production, harvesting, and care of farm products; or (f) Vehicles which have more than two (2) axles.

Ky. Rev. Stat. Ann. § 367.841

        2.3    Process

        2.3.1    KRS 367.842 outlines the process and rights of consumers afflicted with a “lemon”.

        2.3.1.1    Consumers must give the manufacturer a “reasonable number” of attempts to repair any nonconformity.

        2.3.1.1.1    A presumption that the consumer has given the manufacturer a reasonable opportunity to repair the vehicle if he or she has a) returned the vehicle for repair of the same nonconformity 4 times or b) lost use of the vehicle for the nonconformity for more than 30 days. 

        2.3.1.2    The nonconformity must “sustantially impact” the “use, value, or safety” of the motor vehicle”.

        2.3.1.3    The consumer must report the failure to repair the nonconformity in writing to the manufacturer in the first 12 months or 12,000 miles of use, whichever comes sooner. 

        2.3.2    KRS 367.842(4) requires consumers to particpate in an informal dispute resolution process before filing suit

        2.3.3    Damages

        2.3.3.1    The consumer can choose between replacement of the vehicle or refunding the money he or she paid for the vehicle.

        2.3.3.1.1    Under KRS 367.842(2), “the manufacturer, at the option of the buyer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the buyer and refund to the buyer the full purchase price. The full purchase price shall include the amount paid for the motor vehicle, finance charge, all sales tax, license fee, registration fee, and any similar governmental charges plus all collateral charges, less a reasonable allowance for the buyer's use of the vehicle.

        2.3.3.2    A court may award reasonable attorney's fees to a prevailing plaintiff. KRS 367.842(9)

▾    3    Kentucky Repossessions

    •    3.1    There is an entire book published by the National Consumer Law Center on protecting consumers from repossession, prosecuting wrongful repossession, and helping consumers recover from repossessions.

        3.2    Reposssessions in Ketucky are governed by KRS 355.9-601, et seq.

        3.2.1    Repossessions must be 1) after default and must not 2) breach the peace.  KRS 355.9-609

        3.2.2    The repossessing business can resell the collateral but only after providing notice to the consumer KRS 355.9-610 and 9-611.

        3.2.3    Remedies for violations of UCC’s repossession provisions are located at KRS 355.9-625. 

▾    4    Usury

    ▾    4.1    Legal rate of interest

    ▾    4.1.1    KRS 360.010 states that the legal rate of interest is 8%

    •    4.1.1.1    On loans of $15,000 or less, the parties can contract for up to 19%, and

    •    4.1.1.2    On loans greater than $15,000, the parties can contract for whatever interest rate they want. 

        4.1.2    Damages under KRS 360.020

        4.1.2.1    The taking, receiving, reserving, or charging a rate of interest greater than is allowed by KRS 360.010, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the creditors taking or receiving the same: provided, that such action is commenced within two (2) years from the time the usurious transaction occurred.

        4.1.3    Often, businesses effectively charge interest greater than the legal or contractual rate by padding the deal with additional charges and fees. You must acquaint yourself with the case law on these statutes to determine whether certain charges are “interest” and therefore usurious. 

▾    5    Federal Laws

    ▾    5.1    Fair Debt Collection Practices Act (FDCPA)

    •    5.1.1    Protects people from abusive debt collection practices

    •    5.1.2    15 USC 41 § 1692, et seq. http://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V

        5.1.3    Prohibits false or misleading representations, unfair practices, harrassment or abuse

        5.1.4    Again, the National Consumer Law Center publishes an entire book on this subject and some practitioners focus exclusively on prosecuting these claims.

        5.1.5    Report on Debt Collection from the Center for Responsible Lending: http://www.responsiblelending.org/state-of-lending/reports/11-Debt-Collection.pdf

        5.1.6    Damages

        5.1.6.1    § 1692k allows people to recover their actual damages suffered as a result of the violation, up to $1,000 in statutory damages, and attorney’s fees 

        5.1.7    This area of law is extremely rewarding and challenging. Abuse is rampant and the issues that arise are novel and nuanced.

        5.1.7.1    Conway v. Portfolio Recovery Associates, LLC, 13 F.Supp.3d 711 held that a person stated a cause of action for FDCPA violations when a debt collector that received payments in Virginia sued on the debt in Kentucky. Conway’s attorney argued that the debt collector violated the FDCPA because it sued beyond the statute of limitations of the debt and the Court held that the SOL that applied was Virginia’s (3 years), not Kentucky’s (5 or 15 years).  

        5.2    Fair Credit Reporting Act (FCRA) 15 USC § 1681 et seq. 

        5.2.1    Provides a mechanism for consumers to dispute inaccurate information on their credit reports and imposes penalties on credit reporting agencies and furnishers of credit information for failure to correct inaccuracies.

        5.2.2    FTC’s Summary of Consumer Rights under FCRA: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf

        5.2.3    Damages (§ 1681(n))

        5.2.3.1    Actual damages in any amount or statutory damages not to exceed $1,000

        5.2.3.2    Punitive damages

        5.2.3.3    reasonable attorney’s fees

        5.3    Truth in Lending Act (TILA) 15 USC ch 41  § 1601 et seq.

        5.3.1    Standardizes how fees and interest are calculated in consumer finance transactions

        5.3.2    Creates environment in which consumers can comparison shop by requring businesses to calculate the “true cost” of the loan and the “real” interest rate after taking into account fees, charges, and other costs of credit

        5.3.3    TILA’s specific requirements are in the awesome-sounding “Regulation Z”: 12 CFR 226

        5.4    Real Estate Settlement and Procedures Act (RESPA)

        5.4.1    The CFPB’s new Regulation X provides a private cause of action for violations of many of the regulations governing mortgage servicers. Read more here: http://www.consumerfinance.gov/regulations/2013-real-estate-settlement-procedures-act-regulation-x-and-truth-in-lending-act-regulation-z-mortgage-servicing-final-rules/

        5.5    Telephone Consumer Protection Act (TCPA): 47 USC § 227

        5.5.1    The Telephone Consumer Protection Act prohibits obnoxious and costly use of telephones. It limits the circumstances under which businesses can contact consumers and places meaningful restrictions on telemarketers and the use of automated dialing systems (“autodialers” or “robodialers”), text messages, voice recordings, and fax machines. 

        5.5.2    Damages

        5.5.2.1    Actual damages

        5.5.2.2    Statutory damages up to $1,500 per violation

        5.5.2.3    No attorney’s fees under the TCPA

▾    6    Other Causes of Action

    ▾    6.1    URLTA (Uniform Residential Landlord Tenant Act) KRS 383.505

    •    6.1.1    KRS 383.500 requires local governments to adopt URLTA in its entirety and without amendment. As of 2009, the following jurisditions had adopted URLTA’s provisions: Barbourville, Bellevue, Bromley, Covington, Dayton, Florence, Lexington-Fayette County, Georgetown, Louisville-Jefferson County, Ludlow, Melbourne, Newport, Oldham County, Pulaski County, Shelbyville, Silver Grove, Southgate, Taylor Mill and Woodlaw. 

        6.1.2    Remedies include a private right of action

        6.1.2.1    KRS 383.520: (1) The remedies provided by KRS 383.505 to 383.715 shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages. (2) Any right or obligation declared by KRS 383.505 to 383.715 is enforceable by action unless the provision declaring it specifies a different and limited effect.

        6.1.2.2    No decision on whether attorney’s fees are “appropriate damages” under URLTA. 

        6.2    Equitable Estoppel: Fluke Corporation v. LeMaster, 306 SW 3d 55 (Ky. 2010). 

        6.2.1    Under Kentucky law, equitable estoppel requires both a material misrepresentation by one party and reliance by the other party:

The essential elements of equitable estoppel are[:] (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

        6.3    IIED

        6.3.1    In certain circumstances, unscrupulous businesses’ actions will rise to the level of Intentional Infliction of Emotional Distress.

        6.3.2    Our Commonwealth first adopted the tort of intentional infliction of mental distress in the case of Craft v. Rice, Ky., 671 S.W.2d 247 (1984). In Craft, we adopted Restatement (Second) of Torts, section 46, and recognized the elements of proof necessary for this new tort: 1. The wrongdoer's conduct must be intentional or reckless; 2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3. There must be a causal connection between the wrongdoer's conduct and the emotional distress; and 4. The emotional distress must be severe. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996)

        6.4    Breach of Contract

        6.4.1    Of course, in many cases, not only will you have KCPA violations and tortious activity, you will also have breach of contract claims. 

        6.5    Insurance Bad Faith

        6.5.1    Kentucky’s Unfair Claims Settlement Practices Act (KRS 304.12-230) supplements common law “bad faith” administration of insurance claims.

        6.5.2    It prohibits specific activities that are unfortunately common during the process of making a claim for coverage including, but not limited to, “failing to acknowledge and act reasonably promptly upon communications”, failing to investigate claims, “failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed”, and “not attempting in good faith to effectuate prompt, fair, equitable settlements of claims in which liability has become reasonably clear.” Reading the entire statute and surrounding jurisprudence is, of course, necessary. 

        6.6    Fraud

        6.6.1    Elements

        6.6.1.1    In a Kentucky action for fraud, the party claiming harm must establish six elements of fraud by clear and convincing evidence as follows: a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury. Wahba v. Don Corlett Motors, Inc., Ky.App., 573 S.W.2d 357, 359 (1978). United Parcel Serv. Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999)

        6.6.2    Promises of future performance

        6.6.2.1    An accepted rule is, a misrepresentation, to be actional, must concern an existing or past fact, and not a future promise, prophecy, or opinion of a future event, unless declarant falsely represents his opinion of a future happening.” “One may commit ‘fraud in the inducement’ by making representations as to his future intentions when in fact he knew at the time the representations were made he had no intention of carrying them out.” 

PCR Contractors, Inc. v. Daniel, 354 S.W.3d 610, 614 (Ky. App. 2011) quoting Bear, Inc. v. Smith, 303 S.W.3d 137, 142, 614 (Ky. App. 2010).

        6.6.3    Fraudulent Omission

        6.6.3.1    This subset of “fraud” is a common cause of action in consumer law practice.

        6.6.3.2    To prevail on a claim of fraudulent omission, a plaintiff must prove: (a) a duty to disclose a material fact; (b) a failure to disclose a material fact; and (c) that the failure to disclose a material fact induced the plaintiff to act and, as a consequence, (d) to suffer actual damages. Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky.App.2003). A caveat to the necessary elements under either claim is that “mere silence does not constitute fraud where it relates to facts open to common observation or discoverable by the exercise of ordinary diligence, or where means of information are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d 918, 920–921 (Ky.1956). Waldridge v. Homeservices of Kentucky, Inc., 384 S.W.3d 165, 171 (Ky. Ct. App. 2011).;

        6.6.3.3    A duty to disclose facts is created only where a confidential or fiduciary relationship between the parties exists, or when a statute imposes such a duty, or when a defendant has partially disclosed material facts to the plaintiff but created the impression of full disclosure. Dennis v. Thomson, Ky., 240 Ky. 727, 43 S.W.2d 18 (1931). Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky. Ct. App. 2003);

        6.6.3.4    Beyond these three situations cited in Rivermont in which a duty arises, Kentucky courts have found other circumstances in which a party may commit fraudulent concealment:

        6.6.3.4.1    A duty to disclose may arise from a fiduciary relationship, from a partial disclosure of information, or from particular circumstances such as where one party to a contract has superior knowledge and is relied upon to disclose same. Smith v. Gen. Motors Corp., 979 S.W.2d 127, 129 (Ky. Ct. App. 1998)

        6.6.3.4.2    We may readily agree with the appellants that mere silence with respect to something related to a transaction is not necessarily misrepresentation and does not itself constitute fraud. However, it is otherwise when the circumstances surrounding a transaction impose a duty or obligation upon one of the parties to disclose all the material facts known to him and not known to the other party. The suppression or concealment of the truth under such circumstances may constitute a means of committing a fraud as well as misrepresentation openly made. Since the beginning of our jurisprudence, the principle has been consistently adhered to that the concealment by a seller of a material defect in property being sold, or the suppression by him of the true conditions respecting the property, so as to withhold from the buyer information he is entitled to, violates good faith and constitutes deception which may relieve the buyer from an obligation or may permit him to maintain an action for damages or to vacate the transaction. Hall v. Carter, 324 S.W.2d 410, 412 (Ky. 1959)

        6.7    Negligent Misrepresentation

        6.7.1    A majority of jurisdictions have adopted Restatement (Second) of Torts § 552, which outlines the elements of negligent misrepresentation as follows:(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. Presnell Const. Managers, Inc. v. EH Const., LLC, 134 S.W.3d 575, 580 (Ky. 2004)

▾    7    Foreclosure Defense

        7.1    See outline that follows

        7.2    Foreclosure Defense includes helping your client rigorously pursue all loss mitigation options

        7.2.1    http://www.makinghomeaffordable.gov/for-partners/understanding-guidelines/Documents/mhahandbook_41.pdf

Kentucky Car Dealers Using GPS and Starter Interrupt Devices in Greater Numbers

The New York Times wrote a good article a couple of weeks ago on a phenomenon I’m seeing more and more in my car fraud practice: used car dealers are now installing GPS and SID (Starter Interrupt Devices) on the cars they sell. While everyone knows what a GPS does, these GPS devices don’t sit on the dashes of cars and help drivers navigate to their destinations. Instead, they allow dealers and finance companies to track the whereabouts of cars for repossession. 

Meanwhile, the Starter Interrupt Device is less well-known and even more dangerous. It does exactly what it says it does: it allows a dealer or finance company to interrupt (i.e. prevent) the car from starting. Dealers and finance companies can “flip the switch” on the SID remotely. So, they never have to leave their office (and sometimes can deploy it from a smartphone) and with the flip of a digital switch can make a vehicle stop working. (If properly installed, the SID will not stop a vehicle that is in motion, but that does not fix the safety concerns of being stranded.)

Some dealers disclose the existence of these devices to consumers, some don’t. Those who do disclose their use of the device often try to explain that these devices “help locate the vehicle if it is stolen”. While that may be true, the actual purposes are to a) locate the vehicle for repossession and b) incentivize the consumer to make payments by preventing the consumer from using the vehicle if he or she misses a payment. 

The used car industry’s expanding use of these devices raises many potential legal issues that have yet to be litigated in Kentucky. A leading attorney advising the used car industry has described both 1) failing to disclose a GPS or SID and 2) charging consumers for the devices as among the “Ten ‘Worst Practices’ for Dealers”. Failing to disclose the existence of a GPS and/or SID on a new or used vehicle may be a violation of the Motor Vehicle Retail Installment Sales Act. 

Another area ripe for abuse is in the repossession of a vehicle by use of a Starter Interrupt Device. Aside from the safety issues raised by someone crippling a vehicle remotely, a dealer’s use of a Starter Interrupt Device can potentially violate, among other laws, the Uniform Commercial Code and the Kentucky Consumer Protection Act. 

If you discover that a car dealer sold you a vehicle equipped with a GPS or SID unit without disclosing it to you, you need to contact an attorney to explore your legal rights. You can find a consumer attorney in your state at the National Association of Consumer Advocate’s website.  

Louisville Jury Refuses to Tolerate Car Dealer's Deceptive Practices

I spent Tuesday, Wednesday, and Thursday of this week trying a car fraud case in Jefferson Circuit Court. It was my first trial as a lead attorney and the first case Ben Carter Law has taken to trial. 

My client, Renay Seals, alleged that the Defendant, Mak Cars, Inc dba Unique Motorsports (Mak Cars also does business in Louisville as Hot Deals on Wheels Used Cars) sold her a car with more than 245,000 miles on it after assuring her that a) the car only had 54,000 additional miles on it beyond the 21,420 on the odometer and b) the car was eligible for a 24 month/24,000 mile warranty. 

Tommie Seals, Renay's son, with the 2006 Dodge Charger the day after Renay purchased it from Mak Cars, Inc. Tommie and Renay would learn the truth about the car—that it had at least 245,000 miles on it and was not eligible for an extended warranty—a month later. 

Tommie Seals, Renay's son, with the 2006 Dodge Charger the day after Renay purchased it from Mak Cars, Inc. Tommie and Renay would learn the truth about the car—that it had at least 245,000 miles on it and was not eligible for an extended warranty—a month later. 

The jury found that Mak Cars, Inc violated the Kentucky Consumer Protection Act and ordered the Defendant to pay Renay: 

  • $13,927.42, the price Renay paid for the 2006 Dodge Charger;
  • $5,000 for the anxiety, humiliation, and frustration Mak Cars's deception caused her; and
  • $245,000 in punitive damages. 

The jury also found that my client was 10% responsible for what happened, which reduces the amount of the judgment for the purchase price and mental suffering by the same proportion. 

There are three great things about this verdict. (Okay, there are a lot more than three, but I want to talk about three here.)

First, Renay is from Louisiana. The only experience she had with Louisville, Kentucky was coming here to look at a car she thought had 21,240 miles on it and getting hosed. With its verdict, the jury said, "What happened to you is not acceptable. It's not how we treat people here." Renay and her son left Louisville yesterday knowing that Louisville, Kentucky has good people in it. 

Second, I had a chance to talk with some jurors after the case. One of them said, "Do you know why we set punitive damages at $245,000?" We had set the maximum amount we could recover at $250,000, so I told her I just thought they didn't want to give the max.

"No, we set it at $245,000 because that was how many miles the car had on it. We thought that would be an appropriate symbol to deter other dealers from doing something like this."

AWESOME. This shows the jury was thinking even harder than I was about this case. Which I didn't think was possible until it was. 

Third, another juror told me that the jury wanted to write on the verdict that Renay had to spend a little bit of the money it ordered Defendant to pay her to return to Louisville and attend Derby next year. This jury was truly appalled that someone from out of town was treated so badly by a Louisville business.

Yesterday was a great day for my client: the jury validated her 18-month fight both out and then in court with a company that had done her wrong. It was a great day for me: it was a scary thing to go to trial on my own for the first time. And, I hope, the jury's verdict will help other Kentucky consumers and their attorneys get fair compensation for wrongs done to them.

Before Renay and Tommie hit the road yesterday, I made them let me take a selfie with them. 

Before Renay and Tommie hit the road yesterday, I made them let me take a selfie with them. 

Kentucky Auto Fraud: Researching the Dealership

If you suspect you or your client is a victim of automobile fraud, one of the first things you will need to do is figure out who owns the dealership. This can be difficult because many dealerships are simply "doing business as" [name of dealership]. They are doing business under an assumed name while being owned by another company, partnership, or individual.  

The first place to look for ownership interests is the Kentucky Secretary of State's website. There, you can enter the name of the car dealership and, hopefully, find an active company, partnership, or certificate to do business under an assumed name.  

Consumer laws exist to protect Kentuckians from some car dealers' abusive sales tactics. 

Consumer laws exist to protect Kentuckians from some car dealers' abusive sales tactics. 

Unfortunately, sometimes that doesn't work. The next step is to file a Request to Inspect Public Records from the Kentucky Motor Vehicle Commission. I did this yesterday in a case I'm researching against a dealership that, I believe, wrongfully repossessed my client's car (and did so in a fraudulent, abusive, inhumane way). When I called the Motor Vehicle Commission, I asked how I would request the dealership's most recent application for a license to sell cars in Kentucky and was told that they could fax or mail me the Request to Inspect Public Records. 

"I's not available on your website?" I asked. 

"No. I can fax it or mail it to you."  

Here is a .pdf of the Request to Inspect Public Records from Kentucky's Motor Vehicle Commission. Use it to request the most recent application for a car dealer's license. Here is a copy of the blank application to become a car dealer in Kentucky. It will give you a sense of the information you will get by requesting the dealer's license application. 

Of course, if you are a consumer and you suspect you have been victimized by a car dealer through fraudulent or scammy tactics, you should consult a lawyer to determine what, if any, legal recourse you might have to fix the fraud, unwind the deal, or pursue the dealer for money damages. This is not the post to explain the many, many ways that car dealers can take advantage of consumers through odometer rollbacks, fraudulent omissions of material facts, scammy financing, yo-yo sales, and wrongful repossessions. This is just to say that you should contact a lawyer because laws exist to protect consumers from the predatory tactics some car dealers use to make a quick (and highly profitable) sale.