Consumer Protection Law in a Nutshell

by Marsh, Gene A.

• ISBN13: 9780314231680
• ISBN10: 0314231684
• Edition: 3rd
• Format: Paperback
• Copyright: 1999-07-01
• Publisher: West Academic

Summary

This reliable source explores the traditional areas in consumer protection and covers the state and federal laws dealing with electronic transactions. Expert discussion includes topics on public and private actions to regulate consumer markets; methods of inducing consumer transaction; the consumer credit market; credit reports; identity theft; credit repair; and equal access to credit. Text also addresses disclosure terms in consumer transactions, regulating the cost of credit, and other terms in consumer transactions.

Table of Contents

Preface	v
Table of Cases	xxi
Introduction to Consumer Transaction Law
What Is a Consumer Transaction?	1	(2)
Common Law Remedies: Limitations and Problems of Proof	3	(3)
Modern Consumer Protection Statutes: An Overview	6	(6)
Public and Private Actions to Regulate Consumer Markets
Overview	12	(1)
State Agency Enforcement	12	(3)
The Federal Trade Commission: A Brief History	15	(6)
Private Actions Using State Law	21	(5)
General	21	(2)
Who May Sue?	23	(1)
Who Can Be Sued?	24	(1)
Procedural Obstacles to Suit	25	(1)
Remedies	25	(1)
Private Actions Using State Law---Continued
Attorney's Fees Under State Statutes	26	(1)
RICO as a Civil Suit Option for Consumers	27	(2)
Class Actions	29	(6)
Overview	29	(1)
Basic Requirements for Certification	30	(3)
Potential for Abuse in Class Actions	33	(2)
Arbitration	35	(5)
Methods of Inducing Consumer Transaction
Advertising	40	(13)
Common Law Actions	40	(2)
Federal Trade Commission's Regulation of Advertising	42	(3)
Bait and Switch Advertising	45	(3)
Applying States Statutes to Advertising	48	(2)
The Truth in Lending Act's Advertising Provisions	50	(1)
Racketeer Influenced and Corrupt Organization Act Advertising Provisions	51	(1)
Class Actions Based on Deceptive Advertising	52	(1)
Other Sales Practices	53	(5)
Door-to-door Sales	53	(1)
Telephone Sales	54	(3)
Mail and Telephone Order Sales	57	(1)
Unsolicited Goods	58	(1)
Other Sales Practices---Continued
Referral Sales	58	(1)
Pyramid Sales	59	(1)
Auto Sales	59	(1)
Repair Regulations	59	(1)
Sale of Used Cars	60	(1)
Auto Leases	61	(2)
The Consumer Credit Market
The Growth of Consumer Installment Debt	63	(2)
The Consumer Lending Industry	65	(7)
Overview	65	(2)
Payday Loans	67	(1)
Pawnshops	67	(1)
Rent-to-Own	68	(4)
The Subprime Credit Market	72	(3)
Overview	72	(2)
Abusive Lending Practices in the Subprime Market	74	(1)
Dealer-Arranged Financing	75	(15)
Overview	75	(1)
Lender Liability Theories Involving Dealer Paper	76	(3)
Problems With Dealers in Home Improvement	79	(4)
Financing Dealer Contracts	83	(3)
Unfair Lending Practices in Dealer Financing	86	(4)
Dealer-Arranged Financing---Continued
A Benchmark Case in Dealer Financing	90	(8)
Credit Reports, Identity Theft, Credit Rapair, and Equal Access to Credit
Credit Reports	98	(24)
Use	98	(2)
Common Law Protection	100	(2)
State Laws	102	(1)
Fair Credit Reporting Act	102	(1)
Scope	102	(3)
Requirements for Furnishers of Information	105	(2)
Requirements for Consumer Credit Reporting Agencies	107	(3)
Requirements for Users of Consumer Reports	110	(4)
Rights of Consumers	114	(4)
Administrative Remedies	118	(1)
Criminal Remedies	119	(1)
Civil Liability	120	(2)
Identity Theft Act	122	(2)
Credit Repair Organizations Act	124	(3)
Discrimination in Access to Credit	127	(4)
Scope of Equal Credit Opportunity Act	127	(1)
Discrimination in Obtaining Information in Credit Applications	128	(1)
Discrimination in Evaluating Credit Applications	129	(2)
Discrimination in Access to Credit---Continued
Notification	131	(1)
Effect of Equal Credit Opportunity Act on State Law	132	(1)
Remedies
Disclosure of Terms in Consumer Credit Transactions	133	(304)
Need for Disclosure Legislation	135	(2)
Federal Truth in Lending Act	137	(31)
Introduction	137	(1)
Regulation Z and the Official Staff Commentary	137	(1)
Scope of Application of Truth in Lending	138	(1)
Amount of Credit	139	(1)
Purpose of Credit	139	(1)
Status of Debtor	140	(1)
Business of Creditor	140	(3)
Imposition of Finance Charge	143	(1)
Organization of Truth in Lending Act and Regulation Z	143	(2)
General Disclosure Requirements	145	(2)
Closed-end Credit Disclosures	147	(1)
Time for Disclosure	147	(2)
Disclosure of the Finance Charge	149	(4)
Credit Insurance	153	(2)
Burying Finance Charges in the Cash Price	155	(7)
Annual Percentage Rate	162	(3)
Other Disclosure Requirements	165	(3)
Federal Truth in Lending Act---Continued
Additional Disclosures in Certain Residential Mortgage Transactions	168	(3)
Additional Disclosure Problems	171	(1)
Location of Disclosures	171	(1)
Security Interests	172	(2)
Open-End Credit	174	(1)
Disclosures in Applications and Solicitations	174	(1)
Initial Statement	175	(2)
Periodic Statements	177	(3)
Recent Problems in Open-End Credit and Marketing of Consumer Goods	180	(1)
Overview of the Litigation	180	(1)
Marketing Flaws	181	(5)
``Spurious'' Open-End Credit	186	(1)
Real Estate Transactions and TILA	187	(4)
Federal Enforcement of TILA	191	(1)
Administrative Enforcement	191	(2)
Criminal Actions	193	(1)
Consumer Remedies	194	(1)
Introduction	194	(1)
Standing to Bring Claims for Damages	195	(1)
Measure and Purpose of Damages	196	(2)
Multiple Tila Statutory Damages	198	(1)
Multiple Violations Generally	198	(1)
Refinancings	198	(1)
Multiple Obligors	199	(1)
Multiple Creditors: Assignee Liability	200	(1)
Violations Giving Rise to Statutory Damages	201	(1)
Federal Truth in Lending Act---Continued
Generally	201	(1)
Specific ``Disclosure'' Violations: What Is a Penalty Violation And What Is Not	202	(2)
Recovering Both Tila Damages and State Law Damages	204	(2)
Recoupment and Set-off	206	(1)
Statutory Damages and Recission	206	(1)
Rescission Generally	207	(1)
Actual Damages	208	(1)
Background	208	(1)
Standards For Proving Tila Actual Damages	208	(4)
Practical Approaches to Obtaining Actual Damages	212	(1)
Generally	212	(1)
Restitutionary damages	213	(1)
Damages for consumer's missed opportunity	214	(1)
Consequential damages: emotional distress	215	(1)
Defenses	216	(1)
Statute of Limitations	216	(1)
Bona Fide Error	217	(1)
Correction of Error	217	(1)
Truth in Savings Act	218	(2)
The Consumer Leasing Act	220	(4)
Introduction	220	(1)
Required Lease Disclosurs	221	(2)
Remedies for Cla Disclosures	223	(1)
The Interstate Land Sales Full Disclosure Act	224	(2)
Real Estate Settlements Procedure Act	226	(3)
The Home Ownership and Equity Protection Act of 1994	229	(6)
Introduction	229	(2)
The Apr Trigger	231	(1)
Point and Fees Trigger	231	(1)
Disclosure Requirements	232	(1)
Additional Substantive Protections and Penalties	233	(2)
Regulating the Cost of Credit
History of Rate Regulation	235	(4)
Should There Be Rate Ceilings?	239	(3)
Problems in Proving Usury	242	(6)
Intent	243	(1)
Should Loans and Credit Sales Receive Different Treatment?	244	(3)
Has the Maximum Legal Rate Been Exceeded?	247	(1)
Types of Lenders and Credit	248	(1)
Federal Preemption	249	(2)
Computing the Maximum Amount That Can Be Charged	251	(4)
Other Computation Problems	255	(8)
What Charges Are Considered Interest?	263	(1)
Loan Origination and Closing Expenses	264	(1)
What Charges Are Considered Interest?---Continued
Commitment Fees	264	(1)
Charges Payable by the Debtor on Default	265	(1)
Prepayment Penalties	266	(1)
Is It Really a Credit Transaction?	267	(1)
Which State Rate Law Applies?	268	(3)
Remedies	271	(2)
Regulation of Other Terms in Consumer Transactions
FTC Credit Practice Rule	273	(7)
Introduction	273	(1)
Remedies for Violations of the FTC Rule	274	(1)
Prohibited Practices Under the FTC Rule	275	(5)
Flipping	280	(14)
The Increase of Loan Renewals	281	(3)
Employee Incentives and Marketing Strategies in Loan Renewals	284	(3)
Add-on Interest and the Rule of 78THS	287	(2)
Observations on Flipping	289	(5)
Credit Insurance	294	(11)
Introduction	294	(1)
Regulation of Credit Insurance	295	(3)
Credit Life Insurance	298	(3)
Credit Disability Insurance (Accident & Health)	301	(1)
Involuntary Unemployment Insurance	302	(1)
Credit Property Insurance	303	(1)
Overview	303	(2)
Credit Insurance---Continued
Execess Property Insurance Coverage	305	(3)
Non-filing Insurance	308	(4)
Force-Placed Insurance	312	(1)
Voluntariness	313	(9)
UCC Limitations on Interests in After--Acquired Consumer Goods	322	(2)
Yield Spread Premium Financing Arrangements	324	(6)
Additional Complaints Regarding ``Up-charges'' and Itemization of the Amount Financed	330	(3)
Unconsionability	333	(4)
Post-Transaction Problems
The Holder in Due Course Doctrine	337	(23)
Introduction	337	(6)
The Loss of Holder in Due Course Status in Certain Consumer Lending	343	(7)
Should the Ftc Rule Limit Affirmative Recovery?	350	(10)
Defenses in Credit Card Transactions	360	(8)
Defenses Arising From the Underlying Transaction	360	(4)
Unauthorized Use	364	(4)
Electronic Fund Transfer Act	368	(13)
Billing Problems	381	(1)
Fair Credit Billing Act	381	(1)
Billing Problems---Continued
Billing Errors	382	(11)
Billing Period	387	(2)
Billing Systems	389	(4)
Default	393	(1)
Common Law Limitation on Collection Efforts	394	(4)
The Fair Debt Collection	398	(1)
Introduction	399	(1)
Persons and Transactions Covered	399	(2)
Validation of Debts	401	(1)
Prohibitions Against False or Misleading Information	402	(2)
Harassment or Abuse	404	(1)
Additional Restrictions on Communications With the Debtor	405	(1)
Civil Liability and Bona Fide Error Defense	405	(1)
Other Statutes	406	(1)
Judicial Collection Efforts	406	(2)
Exempt Property	408	(1)
State Law	408	(3)
Title III of the Consumer Credit Protection Act	411	(3)
Obtaining Judgments	414	(2)
Special Rights of Lien Creditors	416	(1)
Repossession in General	416	(1)
Actions Under Article 9	417	(1)
``Breach of the Peace'' Under Section 9--503	417
Default	393	(31)
Retention or Resale Under Article 9	418	(2)
Limitations on Deficiency Judgment	420	(4)
Warranties	424	(13)
Uniform Commercial Code	424	(6)
The Magnuson--Moss Warranty Act	430	(7)
Index	437