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In a 2-1 unpublished opinion,  the California Fifth District Court of Appeal reversed an order of dismissal following the sustaining of a demurrer in a post-repossession notice of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 Cars.com, 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

In Aho v. Americredit Financial Services, Inc., --- F.R.D. ----, 2011 WL 5401799 (S.D.Cal. 2011), Judge Sabraw certified an NOI class under the UCL and ASFA for allegedly faulty post-repossession letters ("NOIs") pursuant to FRCP 23(b)(2), but refused to do so under the Rosenthal Act.  Judge Sabraw found the ‘damages’ sought under the Rosenthal Act were not incidental to the… Read More

In Aguayo v. U.S. Bank, --- F.3d ----, 2011 WL 3250465 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit held that the National Bank Act did not pre-empt the Rees-Levering Automobile Sales Finance Act as to disclosures required in Notice of Intent to Dispose ("NOI") letters.  The Court of Appeals explained: Despite all the foregoing, U.S. Bank insists… Read More

In Aho v. AmeriCredit Financial Services, Inc., 2011 WL 3047630 (S.D.Cal. 2011), Judge Sabraw found that Juarez v. Arcadia Financial, Ltd., 152 Cal.App.4th 889, 912, 61 Cal.Rptr.3d 382 (2007), and its holding regarding post-repossession NOIs applied to letters mailed to classmembers before Juarez was issued.   Defendant argues Juarez should apply prospectively only, and therefore any member of the class… Read More

In Cappo Management V, Inc. v. Britt, --- S.E.2d ----, 2011 WL 2277386 (Va. 2011), the Supreme Court of Virginia addressed a spot delivery situation where the dealer was unable to secure financing for the consumer and, accordingly, repossessed the car.  The Court found the repossession proper under Article 9 of the UCC, explaining:   Applying this principle, we hold… Read More

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