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In Fierro v. Capital One, N.A., No. 22-cv-00493-BAS-BLM, 2023 U.S. Dist. LEXIS 25253, at *6-9 (S.D. Cal. Feb. 13, 2023), Judge Bashant allowed a UCC claim to proceed for a "totaled" vehicle, despite no "disposition" of it. In dismissing Plaintiff's first attempt to raise a claim under California's Commercial Code, the Court expressed doubt that Plaintiff could plead a violation… Read More

In Loury v. Westside Auto. Grp., 2022-Ohio-3673, ¶¶ 28-32 (Ct. App.), the Court of Appeals found no error in a car dealer repossessing a vehicle after a 30-day contract period within which it was supposed to obtain financing. As previously stated, the parties' Conditional Delivery Agreement provides that Loury is entitled to take immediate possession of the car while Westside… Read More

In Cent. Tr. Bank v. Branch, No. SC99297, 2022 Mo. LEXIS 221, at *15-18 (Sep. 13, 2022), the Missouri Supreme Court reversed lower courts' complaints about a Bank's post-repossession notices and vehicle disposition, finding that the Bank had properly disclosed a "dealers-only" auction as a private sale. The Bank asserts the circuit court erred in ruling the Bank did not… Read More

D'Happart v. First Commonwealth Bank, 2022 PA Super 132, 2022 Pa. Super. LEXIS 328 (No. 580 WDA 2021 August 5, 2022) , Judge Bender affirmed the Court of Common Pleas finding against a consumer who challenged the application of the UCC's safe harbor to the notice required after his vehicle was repossessed. Appellants' second issue, they claim that FCB's "pre-sale… Read More

In Safe Credit Union v. Diaz, No. C092158, 2021 Cal. App. Unpub. LEXIS 5435, at *7 (Aug. 23, 2021), the Court of Appeal held in an unpublished decision that an anti-SLAPP motion by a credit union was not proper to challenge an NOI class action filed in response to a debt collection action. For complaints and cross-complaints alleging mixed causes… Read More

In Lobel Fin. Corp. v. Guiam, No. H044095, 2019 Cal. App. Unpub. LEXIS 7717, at *8 (Nov. 20, 2019), the Court of Appeal found that an automobile finance company's NOI withstood an ASFA challenge. In this case, respondent sent appellant an NOI pursuant to the ASFA. The terms of the NOI are not in dispute. What is in dispute is… Read More

In Baseline Financial Services, Inc. v. Hobbs, 2016 WL 7243531, at *4–6 (Cal.App. 4 Dist., 2016), the Court of Appeal in an unpublished decision found that an automobile lender complied with the mailing requirements of the ASFA. It is undisputed that Bank of the West sold the vehicle on March 18, 2010. Baseline presented in evidence an NOI with respect… Read More

In Ally Financial, Inc. v Trujillo, 2016 WL 4766225, at *6 (Cal.App. 6 Dist., 2016), the Court of Appeal held in an unpublished decision that class notice in an NOI class action adequately informed the class members of potential adverse tax consequences. On appeal, Trujillo and Riley contend that the class notice regarding tax consequences violates due process, and is therefore… Read More

In Aguayo v. U.S. Bank, 2016 WL 2609296, at *2-4 (S.D.Cal., 2016), Judge Whelan granted partial summary judgment to an NOI class action plaintiff who argued that US Bank's NOI violated state law.  First, Judge Whelan rejected US Bank's conflict preemption argument. On September 24, 2009, this Court granted U.S. Bank's motion to dismiss the case based on the finding… Read More

In Flannery v. VW Credit, Inc., --- Cal.Rptr.3d ----, 2014 WL 7174376 (Cal.App. 2014), the Court of Appeal for the 4th Appellate District reversed a trial court’s sustaining of a demurrer without prejudice on a class action filed under California’s Vehicle Leasing Act. The VLA requires a statement be mailed to the debtor after repossession of a leased vehicle that… Read More

In Wright v. General Motors Acceptance Corp., --- Fed.Appx. ----, 2013 WL 6137482 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit affirmed in an unpublished opinion that an automobile customer who paid a small sum of money to set up his right to bring an NOI class action lacked UCL standing to bring the claim.  On April… Read More

In Gardner v. Ally Financial Inc., --- A.3d ----, 2013 WL 765013 (Md. 2013), the Maryland Court of Appeals held that a $1,000 admission fee transformed a ‘public’ sale into a ‘private’ sale – the latter of which required more detailed post-repossession disclosures and accounting than were provided to the consumer. The issue before us is limited to the $1,000… Read More

In Bank of America, N.A. v. Sea-Ya Enterprises, LLC, 2013 WL 126268 (D.Del. 2013), Judge Andrews found that the purchase of an aircraft was not primarily for personal, family, or household purposes, thus allowing a Bank to pursue a post-repossession/post-sale deficiency balance notwithstanding purported irregularities in the liquidation sale notices. This suit is a loan deficiency action brought by Plaintiff… Read More

In a 2-1 unpublished opinion,  the California Fifth District Court of Appeal reversed an order of dismissal following the sustaining of a demurrer in a post-repossession notice of intent (“NOI”) class action, Tucoemas Federal Credit Union v. See (2012) 2012 WL 5867382. The credit union filed a deficiency action against the borrower following her default on a retail installment contract. … Read More

In White v. Wells Fargo Bank, NA, 2012 WL 4958516 (N.D.Ohio 2012), Judge Polster found no OCC pre-emption of Ohio’s post-repossession notice requirement: The only courts to have addressed these OCC regulations and state-law notice requirements relating to repossession have reached the same conclusion. See Aguayo v. U.S. Bank, 653 F.3d 912 (9th Cir.2011), cert. denied, U.S. Bank Nat. Ass'n… Read More

In Limtiaco v. Auction, LLC, 2012 WL 4911726 (D.Nev. 2012), Judge Du found that a car dealer’s failure to sell a vehicle at market price constituted a hidden finance charge under TILA, even though the RISC did not finance any part of the purchase. On July 24, 2010, Limtiaco entered into a Motor Vehicle Purchase Order and Federal Disclosure… Read More

In Mora v. Harley-Davidson Credit Corp.,2012 WL 3245518 (E.D.Cal. 2012), Judge Ishii adopted the Magistrate’s ruling certifying an NOI class against HDCC, rejecting the argument that an arbitration clause contained in some but not all of the RISCs could defeat class certification.  Magistrate McAuliffe's full opinion which Judge Ishii reviewed can be found at Mora v. Harley-Davidson Credit Corp., 2012… Read More

In Smith v. Americredit Financial Services, Inc., 2012 WL 834784 (S.D.Cal. 2012), Judge Sabraw post-Concepcion followed Sanchez in denying enforcement of an arbitration clause in an NOI class action. With respect to the first clause, the Sanchez court found it was one-sided in favor of the seller because the buyer, not the dealer, is more likely to recover an award… Read More

In Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273780 (S.D.Cal. 2012), Judge Sabraw granted summary judgment to the Plaintiffs on their claims regarding post-repossession letters under Juarez.  As to the claim under the ASFA, Judge Sabraw held:   Accordingly, that the information may be available to the consumer does not relieve Defendant of its obligation to include that information… Read More

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