FTC Holder Rule --16 C.F.R. § 433.2(a)

In Flores v. Westlake Servs., No. B308288, 2021 Cal. App. Unpub. LEXIS 7876, at *13-14 (Dec. 16, 2021), the Court of Appeal found in an unpublished decision that the FTC Holder did not cap attorneys' fees.  The Pulliam case, on which the Court of Appeal relied, is on appeal to the California Supreme Court. Upon considering these factors, Pulliam concluded the FTC's… Read More

In Henry v. Vantage Credit Union, No. 4:20-cv-01865-SRC, 2021 U.S. Dist. LEXIS 101571 (E.D. Mo. May 28, 2021), Judge Clark granted an auto finance company’s motion to compel arbitration. As stated above, state law governs the validity of an arbitration agreement and Henry's argument has been explicitly rejected in Missouri. See Boulds v. Chase Auto Finance Corp., 266 S.W.3d 847… Read More

The FTC today issued a press release on whether the FTC Holder Rule applies to large transactions. The staff of the Federal Trade Commission has issued a note correcting previous staff guidelines on the FTC’s Trade Regulation Rule Concerning Preservation of Consumers’ Claims and Defenses—commonly known as the Holder Rule. The Holder Rule protects consumers who enter into credit contracts… Read More

The California Supreme Court denied review and declined to depublish the Court of Appeal's decision in Spikener.  https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2322739&doc_no=S263361&request_token=NiIwLSEmXkg%2FWyBdSCJNSElIIDg0UDxTJSIuSzxTICAgCg%3D%3D Spikener held that the FTC Holder Rule pre-empted Civil Code section 1459.5, which legislatively sought to overrule the Lafferty decision's finding that the FTC Holder Rule capped attorneys' fees recoverable under the Rule.  https://www.severson.com/consumer-finance/court-of-appeal-cal-says-legislative-effort-to-overrule-laffertys-cap-on-attorneys-fees-under-the-ftc-holder-rule-is-preempted/ Read More

In Heinz v. Driven Auto Sales, No. ED107617, 2020 Mo. App. LEXIS 782 (Ct. App. June 16, 2020), the Missouri Court of Appeals found that a credit union was responsible for the dealer’s conduct under the FTC Holder Rule, despite an argument that the credit union could not be directly liable under the Missouri statute sued upon. In many respects,… Read More

In Spikener v. Ally Financial, Inc. , the Court of Appeal deferred to the FTC's 2019 interpretation of the FTC Holder Rule, holding that the Holder Rule limits recovery, including attorneys' fees, against the holder to the amount that the debtor paid under the assigned contract.  Civil Code 1459.5, which was enacted post-Lafferty to allow a debtor to recover uncapped attorneys'… Read More

In Hernandez v. Apple Auto Wholesalers of Waterbury Llc, No. 3:17-cv-1857 (VAB), 2020 U.S. Dist. LEXIS 86672 (D. Conn. May 18, 2020), Judge Bolden certified an FTC Holder Rule question to the Connecticut Supreme Court. The FTC Holder Rule language "preserves a consumer's right to assert the same legal claims and defenses against the assignee of a credit contract as… Read More

A Superior Court judge ruled on the applicability of Civil Code 1459.5 to an attorney fee motion brought against a Holder.  The Superior Court held: The Court is unwilling to apply pending Civil Code 1459.5.  It does not take effect until January 1, 2020 and is pre-empted by the Federal Trade Commission's May 2, 2019 ruling on the issue of… Read More

In Timmons v. SunTrust Bank, No. A19A1262, 2019 Ga. App. LEXIS 547, at *1-6 (Ct. App. Oct. 9, 2019), the Georgia Court of Appeals held that an auto finance lender was not a holder-in-due-course, but instead was subject to the FTC Holder Rule contained in the RISC. [O]n July 9, 2015, the Plaintiffs purchased a 2015 GMC Sierra from the… Read More

A copy of the Firm’s bulletin on AB 1821, the Lafferty decision, and the FTC Holder Rule can be found here: For information, please contact the authors Mark Lonergan at mdl@severson.com or Kerry Franich at kwf@severson.com Read More