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Court of Appeal (Cal.) Finds that Holder’s Tender of “Correction” Money to the Court under CC 2983.4 Does Not Require “Admission” of Liability for Holder to Be the Prevailing Party

by Scott J. Hyman |

In Tun v. Wells Fargo Bank, the California Court of Appeal found that the Trial Court did not err in finding, pre-trial in limine, that an Automobile RISC Holder's tender to the Court of money under Civil Code 2983.4 did not constitute an "admission of liability".  When the Trial Court, despite a defense verdict in favor of the Dealer and the… Read More

District Court (Va.) Says Car Dealer May Violate TILA by Inflating Vehicle’s Purchase Price If, Also, Cash Price is Higher than Financed Price; State UDAP Claims Can Be Asserted Against Holder under the FTC Holder Rule

by Scott J. Hyman |

In Harold v. TMC Enterprises, LLC, 2016 WL 6069023 (W.D. Va. 2016), Judge Moon held that a car buyer adequately pleaded a TILA violation due to an inflated purchase price of the vehicle where the buyer also alleged that the finance price of a vehicle is higher than its cash price. Plaintiff asserts that Defendants violated the TILA by failing… Read More

District Court (Md.) Grants Summary Judgment to Auto Finance Company Against Consumer Who Just Wouldn’t Believe Company Had Been Assigned the RISC

by Scott J. Hyman |

In Milligan v. Ally Financial, Inc., 2016 WL 2939786, at *1 (D.Md., 2016), Judge Chmsanow granted summary judgment to Ally against a customer who refused to believe that the RISC had been assigned to Ally.    On May 10, 2014, Plaintiff purchased a used vehicle from Waldorf Chevrolet Cadillac (the “Dealership”) in Waldorf,  Maryland by entering into a Retail Installment Sale… Read More

District Court (Ala.) Limits Auto Finance Company’s Liability under the FTC Holder Rule to Amounts Paid

by Scott J. Hyman |

In Wait v. Roundtree Mobile, LLC, 2015 WL 6964668, at *8-9 (S.D.Ala., 2015), Judge Granade  granted summary judgment to an auto finance company under the FTC Holder Rule. In the motion for summary judgment, BMW claims that “[b]oth the FTC Holder Rule as well as the explicit terms of the Contract provide that recovery by the Debtor shall not exceed amounts paid… Read More

Court of Appeal (Cal.) Finds in Unpublished Decision that Judgment Against Defaulting Dealer Does Not Bind Holder of Automobile RISC under FTC Holder Rule

by Scott J. Hyman |

In Lafferty v. Wells Fargo Bank, 2015 WL 1383659 (Cal.App. 3 Dist. 2015), the California Court of Appeal found the FTC Holder Rule did not deprive a holder of a RISC of the opportunity to defend itself merely because the automobile purchaser had obtained a default judgment against the selling dealer. The Laffertys argue they are necessarily already the prevailing party because… Read More

District Court (La.) Says FTC Holder Rule Permits Affirmative Claims Against Assignee Where Seller’s Breach is So Substantial as to Warrant Rescission

by Scott J. Hyman |

In Wales v. Arizona RV Centers, LLC, 2015 WL 137260 (E.D.La. 2015), Judge Lamelle explained the scope of the FTC Holder Rule's "Claims and Defenses" language in connection with the sale of a defective RV. As the foregoing reveals, Defendant's contentions as to the ability of buyers to assert affirmative claims against lenders under the FTC Holder Rule are contradicted by the… Read More

Court of Appeal (Oh.) Reverses Trial Court’s Conclusion that Auto Finance Company Can Not Establish Status as Assignee Without Producing Dealer Agreement

by Scott J. Hyman |

In GMAC, Inc. v. Branham, 2013 WL 2298349 (Ohio App. 6 Dist. 2013), the Ohio Court of Appeal reversed a trial court’s conclusion that an automobile finance company had not established that it was the assignee of the vehicle lease (for collection purposes) because it did not produce its Dealer Agreement with the Dealer. In support of its first assignment… Read More

Court of Appeal (Ill.) Says FTC Holder Rule Allows Consumer to Cease Payments When It Becomes Apparent the Vehicle is a Lemon, but Says FTC Holder Rule Does Not Apply Where Holder Is Not the Assignee of the Seller

by Scott J. Hyman |

In Mercer v. Tumbleson Automotive Group, 2013 IL App (3d) 120400-U, 2013 WL 827716 (Ill.App. 3 Dist. 2013), Judge O’Brien found that a Holder of an automobile RISC was not subject to the Holder Rule for the misconduct of a seller. The facts were as follows: In May 2009, plaintiff Terry Mercer executed a retail installment contract with Taylor &… Read More

Court of Appeal (Cal.) Follows FTC’s May 3, 2012 Advisory Opinion; Holds that FTC Holder Rule Allows Affirmative Claims Against Holders

by Scott J. Hyman |

In Lafferty v. Wells Fargo Bank, --- Cal.Rptr.3d ----, 2013 WL 412900 (2013), the Court of Appeal found that the FTC Holder Rule was not defensive in nature only, and that a consumer can assert affirmative ‘claims and defenses’ against the Holder, as the FTC’s May 3, 2012 Advisory Opinion also held. The Holder Rule unambiguously allows the buyer to… Read More

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