In Sixto Ramirez, Plaintiff–Appellant, v. National Cooperative Bank — N.Y.S.2d —-, 2011 WL 6032399 (N.Y.A.D. 1 Dept. 2011), Judge Catterson found an assignee liable for common law fraud claims arising out of an automobile sale under the FTC and NY Holder Rules:

In its decision and order dated August 3, 2010, the motion court granted NCB’s motion. While not explicitly finding that the plaintiff stated a TILA claim, the motion court dismissed on the grounds that the alleged “misrepresentations” are not “apparent on the face of the disclosure document.” The motion court also agreed with NCB that “[s]everal federal courts have held that state causes of action alleging assignee liability are preempted as in conflict with the intent of Congress in passing Section 1641(a).” On appeal, the plaintiff correctly argues that the motion court erred because the limitation on assignee liability is applicable only to TILA claims. Where the plaintiff brings a non-TILA claim under state law, an assignee may be derivatively liable pursuant to the Holder Rule and its New York analogue. As the plaintiff asserts, the plain language of the limitation on assignee liability restricts its application to violations of “this subchapter”—that is, TILA. See 15 U.S.C. § 1641(a). Further, the plaintiff asserts that the 1980 amendment did not extend assignee protection, which had been in place since 1974, a year before the Holder Rule was promulgated, but merely relocated the provision to a different section of the Code and added two examples of violations that are “apparent on the face of the disclosure statement.” Defendant NCB, apparently recognizing the cogency of the plaintiff’s argument, changed course on appeal and now argues that the plaintiff alleges a “TILA-type” violation and therefore the TILA assignee liability limitation applies. For the reasons set forth below, this Court disagrees. The plaintiff does not allege a TILA or “TILA-type” violation. Therefore, the New York State law pursuant to which the plaintiff brought his claims is not preempted, TILA’s assignee liability limitation is inapplicable, and NCB is liable under federal and state Holder Rules. In Matter of People v. Applied Card Sys., Inc., a Court of Appeals decision addressing TILA preemption in the context of deceptive credit card solicitation schemes, the Court specifically distinguishes between allegations of “affirmative deception” and allegations “relate[d] to the disclosure of credit information,” and provides clear guidelines for determining when TILA preempts state law. 11 N.Y.3d 105, 114, 863 N.Y.S.2d 615, 620, 894 N.E.2d 1, 6 (2008), cert. denied, __ U.S.__, 129 S.Ct. 999, 173 L.Ed.2d 292 (2009). The Court held that TILA preempts “those state laws that relate to ‘disclosure of information’ in credit card applications and solicitations … not those that prevent fraud, deception and false advertising.” Id. Although the Court in Applied Card Sys. analyzed TILA’s preemption provision under section 1610(e), which applies to credit and charge cards, the preemption provision at issue in this case uses identical language to limit preemption only to state laws “relating to the disclosure of information.” See 15 U.S.C. § 1610(a) (applying to closed end credit contracts such as RICs). The Court concluded that TILA preempts a state law that “purport[s] to alter the format, content, and manner of the TILA-required disclosures” or “require[s] credit issuers to affirmatively disclose specific credit term information not embraced by TILA.” Applied Card Sys., 11 N.Y.3d at 114, 863 N.Y.S.2d at 620.