Parker v. Long Beach Mortgage Company - ED Pa. - January 3, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0015P.pdf
Although the court rejected the consumer claims of the plaintiffs, "relatively sophisticated borrowers" one of whom had a real estate license, there is some potentially useful language in the opinion.
The court noted that the dispute involved a "broker and four lending institutions [and] embodies many of the factors identified with predatory, subprime mortgage loans:[ n.1] an aggressive mortgage broker, no document loans, interest climbing to double-digit rates, escalating payments, balloon payments, prepayment penalties, and negative amortization. As distasteful as the practices may be, [n. 2] that odor of opportunism is not enough to save [the plaintiffs] from themselves."
n.1 - HUD-Treasury Joint Report http://www.hud.gov/library/bookshelf12/pressrel/treasrpt.pdf
n. 2 - The power to curb predatory practices lies either in consumer education or with Congress; as a court of limited jurisdiction, I may only enforce the laws as written, not as I would wish they were written.
Friday, January 04, 2008
evidence - immature witnesses
Commonwealth v. Davis - Superior Court - December 17, 2007
http://www.aopc.org/OpPosting/Superior/out/a29031_07.pdf
The determination of a witness's competency rests within the sound discretion of the trial court. The decision of the trial court will not be disturbed absent a clear abuse of that discretion. The "standard of review of rulings on the competency of witnesses is very limited indeed. "
In Pennsylvania, the general rule is that every witness is presumed to be competent to be a witness. However, young children must be examined for competency pursuant to the following test:
(1) The witness must be capable of expressing intelligent answers to questions;
(2) The witness must have been capable of observing the event to be testified about and have the ability to remember it; and,
(3) An awareness of the duty to tell the truth.
If there is an allegation of taint, the inquiry centers on the second element. The “appropriate venue” for investigation into such a claim is a competency hearing , centered on the inquiry into the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth.
Pennsylvania courts have recognized that an immature witness’s testimony can be tainted by the inquiries of adults. In that instance, the core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify.
The capacity of young children to testify has always been a concern, since immaturity can impact a child's ability to meet the minimal legal requirements of competency. Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the “right” answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.
In order to trigger an investigation of competency on the issue of taint, the moving party must show some evidence of taint. Once some evidence of taint is presented, the competency hearing must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption .
http://www.aopc.org/OpPosting/Superior/out/a29031_07.pdf
The determination of a witness's competency rests within the sound discretion of the trial court. The decision of the trial court will not be disturbed absent a clear abuse of that discretion. The "standard of review of rulings on the competency of witnesses is very limited indeed. "
In Pennsylvania, the general rule is that every witness is presumed to be competent to be a witness. However, young children must be examined for competency pursuant to the following test:
(1) The witness must be capable of expressing intelligent answers to questions;
(2) The witness must have been capable of observing the event to be testified about and have the ability to remember it; and,
(3) An awareness of the duty to tell the truth.
If there is an allegation of taint, the inquiry centers on the second element. The “appropriate venue” for investigation into such a claim is a competency hearing , centered on the inquiry into the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth.
Pennsylvania courts have recognized that an immature witness’s testimony can be tainted by the inquiries of adults. In that instance, the core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify.
The capacity of young children to testify has always been a concern, since immaturity can impact a child's ability to meet the minimal legal requirements of competency. Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the “right” answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.
In order to trigger an investigation of competency on the issue of taint, the moving party must show some evidence of taint. Once some evidence of taint is presented, the competency hearing must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption .
state pre-emption of local law-making
Nutter v. Dougherty, et al. - Pennsylvania Supreme Court - December 28, 2007
http://www.aopc.org/OpPosting/Supreme/out/J-89-2007mo.pdf
State law pre-empts local lawmaking where
- a state statute specifically declares that it has "planted the flag of pre-emption in a field" (express pre-emption)
- a state statute "proclaimes a course of regulation and control which brooks no municipal intervention" (field pre-emption)
- local law contradicts or contravenes state law (conflict pre-emption)
http://www.aopc.org/OpPosting/Supreme/out/J-89-2007mo.pdf
State law pre-empts local lawmaking where
- a state statute specifically declares that it has "planted the flag of pre-emption in a field" (express pre-emption)
- a state statute "proclaimes a course of regulation and control which brooks no municipal intervention" (field pre-emption)
- local law contradicts or contravenes state law (conflict pre-emption)
evidence - value of property - proof - testimony v. document
Nelson v. State Board of Veterinary Medicine - Commonwealth Court - December 17, 2007
http://www.aopc.org/OpPosting/CWealth/out/75CD07_12-17-07.pdf
The testimony of the owner of an asset is competent to prove its value, so long as it is based on the owner's personal knowledge. Written documents are not preferable to oral statements. The best evidence rule does not apply where the matter to be proved exists independently of a writing that might also be probative.
http://www.aopc.org/OpPosting/CWealth/out/75CD07_12-17-07.pdf
The testimony of the owner of an asset is competent to prove its value, so long as it is based on the owner's personal knowledge. Written documents are not preferable to oral statements. The best evidence rule does not apply where the matter to be proved exists independently of a writing that might also be probative.
Sunday, December 30, 2007
consumer - arbitration clause - credit repair
Gay v. Creditinform - 3rd Circuit - December 19, 2007
http://www.ca3.uscourts.gov/opinarch/064036p.pdf
Enforcing the contractual arbitration clause pursuant to the Federal Arbitration Act, 9 USC sec. 2, the Third Circuit affirmed the district court in granting the defendant's motion to compel arbitration, on an individual basis, of the plaintiff's proposed class action under the Credit Repair Organizations Act (CROA), 15 USC 1679 et seq. and the Pennsylvania Credit Services Act (CSA), 73 P.S 2181 et seq.
The court held that plaintiff did not satisfy her "burden of establishing that Congress intended to preclude arbitration" of a claim under the CROA or that arbitration "irreconcilably conflicts" with the purposes of the CROA, citing its similar decision under the TILA in Johnson v. West Suburban Bank, 225 F3d 366, 371, 373 (3d Cir. 2000). The court said that the plaintiff, in the arbitration proceeding, would retain her "full range of rights created by the statutes" and that the right to bring a class action was created by the federal rules of civil procedure rather than the CROA. The court also stressed the possibility of administrative enforcement of the CROA by the FTC and state attorneys general, which it said "supply procedures for obtaining remedies reasonably substituting for those available in a class action."
Concerning the anti-waiver provision of the CROA, the court said that it "only prohibits waiver of the substantive obligations" imposed by the CROA and not the enforcement procedures, such as seeking relief in a judicial forum or seeking class relief.
Concerning plaintiff's claim that the arbitration clause and the contract as a whole were unconscionable, the court recognized that federal courts may apply "generally applicable contract defenses" available under state law "such as fraud, duress, or unconscionability" without running afoul of the FAA and the supremacy clause. However, the court held that "mere inequality" of bargaining power did not render a contract unconscionable, unless it approached "fraud or overwhelming economic power that would provide grounds for the revocation of any contract." The court found that the plaintiff -- who paid defendant about $5/month under the credit repair contract -- "could have walked away" from the contract and could have chosen another company to provide the services that defendant did. Her position was "different, for example, from that of a homeowner facing a mortgage foreclosure who accepts onerous refinancing terms in a desperate attempt to save her home."
The court rejected the Pennsylvania Superior Court decisions in Lytle v. CitiFinancial Services, Inc., 810 A.2d 643 (Pa. Super. 2002) and Thibodeau v. ComCast Corp., 912 A.2d 874 (Pa. Super. 2006), which struck down waivers of the right to bring a class action as unconscionable. Citing Perry v. Thomas, 482 U.S. 483 (1987), the court held that Lytle and Thibodeau established state law principles that were unique to arbitration agreements, rather than applicable to contracts generally. "'A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with" the generality requirement of sec. 2 of the Federal Arbitration Act. The court also noted the statement in Salley v. Option One Mortgage Corp., 925 A.2d 115, 129 (Pa. 2006), that the Lytle opinion "was well intentioned" but "swept too broadly."
The court ended by stating that it expressed "no view on whether [narrowing of the application of the FAA] might be a desirable result as it is not our function to do so. Rather, our obligation is to honor the intent of Congress and that is what we are doing. If the reach of the FAA is to be confined then Congress and not the courts should be the body to do so."
http://www.ca3.uscourts.gov/opinarch/064036p.pdf
Enforcing the contractual arbitration clause pursuant to the Federal Arbitration Act, 9 USC sec. 2, the Third Circuit affirmed the district court in granting the defendant's motion to compel arbitration, on an individual basis, of the plaintiff's proposed class action under the Credit Repair Organizations Act (CROA), 15 USC 1679 et seq. and the Pennsylvania Credit Services Act (CSA), 73 P.S 2181 et seq.
The court held that plaintiff did not satisfy her "burden of establishing that Congress intended to preclude arbitration" of a claim under the CROA or that arbitration "irreconcilably conflicts" with the purposes of the CROA, citing its similar decision under the TILA in Johnson v. West Suburban Bank, 225 F3d 366, 371, 373 (3d Cir. 2000). The court said that the plaintiff, in the arbitration proceeding, would retain her "full range of rights created by the statutes" and that the right to bring a class action was created by the federal rules of civil procedure rather than the CROA. The court also stressed the possibility of administrative enforcement of the CROA by the FTC and state attorneys general, which it said "supply procedures for obtaining remedies reasonably substituting for those available in a class action."
Concerning the anti-waiver provision of the CROA, the court said that it "only prohibits waiver of the substantive obligations" imposed by the CROA and not the enforcement procedures, such as seeking relief in a judicial forum or seeking class relief.
Concerning plaintiff's claim that the arbitration clause and the contract as a whole were unconscionable, the court recognized that federal courts may apply "generally applicable contract defenses" available under state law "such as fraud, duress, or unconscionability" without running afoul of the FAA and the supremacy clause. However, the court held that "mere inequality" of bargaining power did not render a contract unconscionable, unless it approached "fraud or overwhelming economic power that would provide grounds for the revocation of any contract." The court found that the plaintiff -- who paid defendant about $5/month under the credit repair contract -- "could have walked away" from the contract and could have chosen another company to provide the services that defendant did. Her position was "different, for example, from that of a homeowner facing a mortgage foreclosure who accepts onerous refinancing terms in a desperate attempt to save her home."
The court rejected the Pennsylvania Superior Court decisions in Lytle v. CitiFinancial Services, Inc., 810 A.2d 643 (Pa. Super. 2002) and Thibodeau v. ComCast Corp., 912 A.2d 874 (Pa. Super. 2006), which struck down waivers of the right to bring a class action as unconscionable. Citing Perry v. Thomas, 482 U.S. 483 (1987), the court held that Lytle and Thibodeau established state law principles that were unique to arbitration agreements, rather than applicable to contracts generally. "'A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with" the generality requirement of sec. 2 of the Federal Arbitration Act. The court also noted the statement in Salley v. Option One Mortgage Corp., 925 A.2d 115, 129 (Pa. 2006), that the Lytle opinion "was well intentioned" but "swept too broadly."
The court ended by stating that it expressed "no view on whether [narrowing of the application of the FAA] might be a desirable result as it is not our function to do so. Rather, our obligation is to honor the intent of Congress and that is what we are doing. If the reach of the FAA is to be confined then Congress and not the courts should be the body to do so."
Tuesday, December 18, 2007
consumer - arbitration clause - unconscionability
O'Shea v. Direct Financial Solutions, Inc. - ED Pa. December 5, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1467P.pdf
The court held that the arbitration clause in a payday loan contract was not unconscionable, either procedurally or substantively, thus preventing the plaintiff from raising UDAP and related consumer claims in a judicial forum. The court found this result mandated by the Federal Arbitration Act, 9 USC sec. 1 et seq. Section 2 makes such a clause "valid, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract." 9 USC, sec. 2 http://www.law.cornell.edu/uscode/html/uscode09/usc_sec_09_00000002----000-.html.
Unconscionability can be a ground for revocation, but a person challenging on this ground has the burden of showing that the provision is both procedurally and substantively unconscionable. Procedural unconscionability pertains to the process by which an agreement is reached and the form of an agreement, including the use of fine print or convoluted or unclear language, none of which was at issue here. Substantive unconscionability refers to terms that unreasonably favor one party, terms to which the unfavored party does not truly assent.
The Third Circuit has "repeatedly held that inequality in bargaining power, alone, is not a valid basis upon which to invalidate an arbitration agreement. Harris v. Green Tree Finance Corp., 183 F.3d, 173, 183 (3d Cir. 1999). The Harris court also held that mutuality of remedies - e.g., the ability of the lender but not the borrower to seek judicial enforcement - is not required of a valid arbitration clause. The instant court rejected the different reasoning in Bragg v. Linden Research Inc., 487 F.Supp. 2d 593 (ED Pa. 2007), which applied California law on unconscionability, not Pennsylvania law.
http://www.paed.uscourts.gov/documents/opinions/07D1467P.pdf
The court held that the arbitration clause in a payday loan contract was not unconscionable, either procedurally or substantively, thus preventing the plaintiff from raising UDAP and related consumer claims in a judicial forum. The court found this result mandated by the Federal Arbitration Act, 9 USC sec. 1 et seq. Section 2 makes such a clause "valid, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract." 9 USC, sec. 2 http://www.law.cornell.edu/uscode/html/uscode09/usc_sec_09_00000002----000-.html.
Unconscionability can be a ground for revocation, but a person challenging on this ground has the burden of showing that the provision is both procedurally and substantively unconscionable. Procedural unconscionability pertains to the process by which an agreement is reached and the form of an agreement, including the use of fine print or convoluted or unclear language, none of which was at issue here. Substantive unconscionability refers to terms that unreasonably favor one party, terms to which the unfavored party does not truly assent.
The Third Circuit has "repeatedly held that inequality in bargaining power, alone, is not a valid basis upon which to invalidate an arbitration agreement. Harris v. Green Tree Finance Corp., 183 F.3d, 173, 183 (3d Cir. 1999). The Harris court also held that mutuality of remedies - e.g., the ability of the lender but not the borrower to seek judicial enforcement - is not required of a valid arbitration clause. The instant court rejected the different reasoning in Bragg v. Linden Research Inc., 487 F.Supp. 2d 593 (ED Pa. 2007), which applied California law on unconscionability, not Pennsylvania law.
Sunday, December 16, 2007
employment - wages - WPCL
Inoff v. Craftex Mills, Inc. - ED Pa. - December 2007
http://www.paed.uscourts.gov/documents/opinions/07D1457P.pdf
Suit for wages on alleged oral, three-year guaranteed contract later memorialized in a series of writings. Plaintiff was a salesman in fabric/textile industry . Motion for summary judgdment by defendant, plaintiff's purported employer, granted in part and denied in part.
choice of law -
A federal court exercising its diversity jurisdiction must apply the choice of law rules of the forum state, Klaxon Co. v. Stenton Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941), so Pennsylvania law was applied to this case. The Pennsylvania Supreme Court has adopted a “flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Griffith v. United Airlines, Inc., 203 A.2d 796, 805 (Pa. 1964). The approach “gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation.” Id. (internal quotation marks and alterations omitted) (quoting Babcock v. Jackson, 191 N.E.2d 279, 283 (N.Y. 1963)). The Griffith “interest/contacts” approach applies to contract disputes. Restatement 2d, Conflict sec. 188(2).
what was the parties' contract?
The defendant claims that plaintiff is an indpt. contractor whose employment was terminable at will. Plaintiff alleges another contract. “Pennsylvania law requires that a plaintiff seeking to proceed with a breach of contract action must establish ‘(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant damages.’” ...The first element is at issue . For a valid contract to exist, there must have been a “meeting of the minds” between the parties. A meeting of the minds is found where “both parties mutually assent to the same thing, as evidenced by an offer and its acceptance.” Since there was a genuine issue of some material facts, no summary judgment granted.
wage payment and collection law -
State statute applies only to employees,not indpt contractors . The defendant claims that plaintiff is not an "employee" under the WPCL. “Employee” is not defined by the WPCL, so Pennsylvania courts look to the state UC Law and the Worker’s Compensation Act’s definitions. ...According to the Pennsylvania courts, the following factors are relevant to the question whether one is an independent contractor: the control of the manner that work is to be done; responsibility for result only; termsof agreement between the parties; the nature of the work or occupation; the skill required for performance; whether one employed is engaged in a distinct occupationor business; which party supplies the tools; whether payment is by the time or by the job; whether the work is part of the regular business of the employer, and the rightto terminate the employment at any time.Surowski v. Commonwealth, 467 A.2d 1373, 1374 (Pa. Commw. Ct. 1983). “[P]aramount . . .among these factors is the right of an individual to control the manner that another’s work is tobe accomplished.” Morin, 871 A.2d at 850.
Also at issue in the case and discussed in the opinion are: promissory estoppel and piercing the corporate veil to make individual corporate officer liable for the wages claimed.
http://www.paed.uscourts.gov/documents/opinions/07D1457P.pdf
Suit for wages on alleged oral, three-year guaranteed contract later memorialized in a series of writings. Plaintiff was a salesman in fabric/textile industry . Motion for summary judgdment by defendant, plaintiff's purported employer, granted in part and denied in part.
choice of law -
A federal court exercising its diversity jurisdiction must apply the choice of law rules of the forum state, Klaxon Co. v. Stenton Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941), so Pennsylvania law was applied to this case. The Pennsylvania Supreme Court has adopted a “flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Griffith v. United Airlines, Inc., 203 A.2d 796, 805 (Pa. 1964). The approach “gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation.” Id. (internal quotation marks and alterations omitted) (quoting Babcock v. Jackson, 191 N.E.2d 279, 283 (N.Y. 1963)). The Griffith “interest/contacts” approach applies to contract disputes. Restatement 2d, Conflict sec. 188(2).
what was the parties' contract?
The defendant claims that plaintiff is an indpt. contractor whose employment was terminable at will. Plaintiff alleges another contract. “Pennsylvania law requires that a plaintiff seeking to proceed with a breach of contract action must establish ‘(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant damages.’” ...The first element is at issue . For a valid contract to exist, there must have been a “meeting of the minds” between the parties. A meeting of the minds is found where “both parties mutually assent to the same thing, as evidenced by an offer and its acceptance.” Since there was a genuine issue of some material facts, no summary judgment granted.
wage payment and collection law -
State statute applies only to employees,not indpt contractors . The defendant claims that plaintiff is not an "employee" under the WPCL. “Employee” is not defined by the WPCL, so Pennsylvania courts look to the state UC Law and the Worker’s Compensation Act’s definitions. ...According to the Pennsylvania courts, the following factors are relevant to the question whether one is an independent contractor: the control of the manner that work is to be done; responsibility for result only; termsof agreement between the parties; the nature of the work or occupation; the skill required for performance; whether one employed is engaged in a distinct occupationor business; which party supplies the tools; whether payment is by the time or by the job; whether the work is part of the regular business of the employer, and the rightto terminate the employment at any time.Surowski v. Commonwealth, 467 A.2d 1373, 1374 (Pa. Commw. Ct. 1983). “[P]aramount . . .among these factors is the right of an individual to control the manner that another’s work is tobe accomplished.” Morin, 871 A.2d at 850.
Also at issue in the case and discussed in the opinion are: promissory estoppel and piercing the corporate veil to make individual corporate officer liable for the wages claimed.
Thursday, December 13, 2007
employment- FMLA - notice to employer
Sarnowski v. Airbrooke Limousine, Inc - 3d Circuit - December 12, 2007
http://www.ca3.uscourts.gov/opinarch/062144p.pdf
This opinion contains a lot of good language about the requirement that an employee must give notice to the employer of the need for FMLA leave, 29 U.S.C. § 2612(e)(2)(B), 29 C.F.R. § 825.302(c). No formal written request for FMLA leave is necessary. Simple verbal notice is sufficient. The notice provision must be construed liberally. No magic words are required. The employee need not know or give the exact dates of the anticipated leave.
http://www.ca3.uscourts.gov/opinarch/062144p.pdf
This opinion contains a lot of good language about the requirement that an employee must give notice to the employer of the need for FMLA leave, 29 U.S.C. § 2612(e)(2)(B), 29 C.F.R. § 825.302(c). No formal written request for FMLA leave is necessary. Simple verbal notice is sufficient. The notice provision must be construed liberally. No magic words are required. The employee need not know or give the exact dates of the anticipated leave.
Monday, December 03, 2007
Fair Credit Reporting Act - negligent non-compliance
Perez v. Trans Union, LLC, et al. - ED Pa. - November 2007
http://www.paed.uscourts.gov/documents/opinions/07D1391P.pdf
Plaintiff sued for an alleged violation of the Fair Credit Reporting Act, 15 USC 1681e(b), when the defendant credit reporting agency (CRA) mistakenly reported to a car dealership that plaintiff had a good credit history but was deceased and thus had no credit score. After this same thing happened several times, matters finally got sorted out, but plaintiff claimed that he had paid more for credit because of the mistakes, which he said were caused by defendant's failure to "follow reasonable procedure to assure maximum possible accuracy of information...." as required by sec. 1681e(b).
Defendant moved for summary judgment, which in a negligent noncompliance case can only be granted in this circuit when the "evidence demonstrates as a matter of law that the procedures it [defendant] followed were reasonable." Philbin v. Trans Union Corp., 101 F3d 957, 965 (3d Cir. 1996). Judging reasonableness "involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy." Id at 963. By contrast, "[o]ther courts have concluded flatly that 'the question, of whether a credit reporting agency followed reasonable procedures is reserved for the jury.'" (citing cases)
The defendant here admitted reiterating inaccurate information, which it did not independently verify. The questions is whether it "ought to have appreciated, under the circumstances presented, that there was a material inaccuracy such that a duty arose upon it to do something to correct it or not make a report." (emphasis in original).
The court held that there had no willful noncompliance, which it said "requires more than mere knowledge." There was no evidence to show that the CRA was "consciously aware that Plaintiff contested the accuracy of the report and then proceeded to report the inaccuracy anyway." (emphasis in original)* There was no "deliberate intention to violate Plaintiff's personal rights."
The court also rejected the negligent noncompliance claim, which consists of four elements
- the inclusion of inaccurate information in a credit report
- the inaccuracy was due to a failure to follow reasonable procedures
- the consumer suffered injury
- the injury was caused by the inclusion of the inaccurate entry.
The court granted summary to defendant based on the plaintiff's "lack of rebuttal evidence" to counter that in the summary judgment record, which showed that the banks involved all got their credit evidence independently of defendant. There was an "absence of evidence that [defendant] provided a credit report about Plaintiff to any potential lender...."
http://www.paed.uscourts.gov/documents/opinions/07D1391P.pdf
Plaintiff sued for an alleged violation of the Fair Credit Reporting Act, 15 USC 1681e(b), when the defendant credit reporting agency (CRA) mistakenly reported to a car dealership that plaintiff had a good credit history but was deceased and thus had no credit score. After this same thing happened several times, matters finally got sorted out, but plaintiff claimed that he had paid more for credit because of the mistakes, which he said were caused by defendant's failure to "follow reasonable procedure to assure maximum possible accuracy of information...." as required by sec. 1681e(b).
Defendant moved for summary judgment, which in a negligent noncompliance case can only be granted in this circuit when the "evidence demonstrates as a matter of law that the procedures it [defendant] followed were reasonable." Philbin v. Trans Union Corp., 101 F3d 957, 965 (3d Cir. 1996). Judging reasonableness "involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy." Id at 963. By contrast, "[o]ther courts have concluded flatly that 'the question, of whether a credit reporting agency followed reasonable procedures is reserved for the jury.'" (citing cases)
The defendant here admitted reiterating inaccurate information, which it did not independently verify. The questions is whether it "ought to have appreciated, under the circumstances presented, that there was a material inaccuracy such that a duty arose upon it to do something to correct it or not make a report." (emphasis in original).
The court held that there had no willful noncompliance, which it said "requires more than mere knowledge." There was no evidence to show that the CRA was "consciously aware that Plaintiff contested the accuracy of the report and then proceeded to report the inaccuracy anyway." (emphasis in original)* There was no "deliberate intention to violate Plaintiff's personal rights."
The court also rejected the negligent noncompliance claim, which consists of four elements
- the inclusion of inaccurate information in a credit report
- the inaccuracy was due to a failure to follow reasonable procedures
- the consumer suffered injury
- the injury was caused by the inclusion of the inaccurate entry.
The court granted summary to defendant based on the plaintiff's "lack of rebuttal evidence" to counter that in the summary judgment record, which showed that the banks involved all got their credit evidence independently of defendant. There was an "absence of evidence that [defendant] provided a credit report about Plaintiff to any potential lender...."
social security disability - treating physician's opinion - claimant credibility
Wilson v. Astrue - ED Pa. November 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits were granted in this case, which has good discussions of the standards for
- evaluating the opinion of a treating physician, and
- judging claimant credibility.
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits were granted in this case, which has good discussions of the standards for
- evaluating the opinion of a treating physician, and
- judging claimant credibility.
Sunday, December 02, 2007
consumer - pleading - UTPCPL - no natl. bank liability under HIFA
Millege v. Chase Bank et al - ED Pa. November 26, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1389P.pdf
Like a number of other courts, this one misstated the pleading requirements under the state consumer protection law, 73 PS 201-2(4)(xxi), holding that the particularity equivalent of fraud pleading is required. The court actually miscited and misquoted the relevant provision, citing it as sec. 201-2(4)(xvii), the pre-1996 citation, instead of sec. 201-4(xxi), and omitting the "or deceptive" language added by the 1996 amendments.
The court also held that a national bank such as Chase cannot be found liable under the state Home Improvement Finance Act (HIFA), 73 P.S. 500-408, for its alleged inclusion of a cash loan in a home improvement contract, because such liability is pre-empted by 12 USC 371 and 12 CFR 34.4, which say that such banks can make real estate loans wihtout regard to state law limitations concerning the terms of credit.
http://www.paed.uscourts.gov/documents/opinions/07D1389P.pdf
Like a number of other courts, this one misstated the pleading requirements under the state consumer protection law, 73 PS 201-2(4)(xxi), holding that the particularity equivalent of fraud pleading is required. The court actually miscited and misquoted the relevant provision, citing it as sec. 201-2(4)(xvii), the pre-1996 citation, instead of sec. 201-4(xxi), and omitting the "or deceptive" language added by the 1996 amendments.
The court also held that a national bank such as Chase cannot be found liable under the state Home Improvement Finance Act (HIFA), 73 P.S. 500-408, for its alleged inclusion of a cash loan in a home improvement contract, because such liability is pre-empted by 12 USC 371 and 12 CFR 34.4, which say that such banks can make real estate loans wihtout regard to state law limitations concerning the terms of credit.
consumer - title insurance - TICA & UTPCPL - exhaustion of admin. remedies
Markocki v. Old Republic Natl. Title Ins. Co. v. Citizens Abstract Co. - ED Pa. - Nov. 19, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1382P.pdf
Held, plaintiff was entitled to sue under the Consumer Protection Law, 73 PS 201-9.2, for an alleged violation of the state Title Insurance Company Act (TICA), 40 PS 910-37(h), without first exhausting her remedies under TICA.
Plaintiff brought her case when she refinanced her mortgage and was charged a "basic rate" of $978.75 rather than a "refinance rate" of $704.70, to which she was entitled under the Rate Manual of the Title Insurance Rating Bureau, 40 PS 910-37(h). When she found out about the improper charges, she sued under RESPA, 12 USC 2607, as well as for violations of the CPL, because of the improper charges under TICA.
Old Republic joined Citizens as a 3d party defendant, because Citizens, acting as its agent under TICA, had collected the improper charges, in spite of Old Republic having told Citizens about the proper changes under the Rate Manual.
Citizens' 12(b) (6) motion to dismiss was denied. Citizens claimed that Markocki had to exhaust her remedies under TICA, which says that an aggrieved person "may be heard" under TICA concerning its insurance rating, 40 PS 910-44(b).
Relying on the "weight of authority" under
- Cohen v. Ciicago Title Insurance Co., 2006 US Dist. Lexis 36689 (ED Pa. )
- Highmark Inc v. UPMC Health Plan, 276 F3d 160 (, 168 (3d Cir. 2001), and
- Ohio Casualty Group v. Argonaut Insurance, 525 A2d 1195, 1197 (Pa. 1987)
The court held that the remedy under TICA was discretionary, optional and incomplete rather than mandatory and exclusive, and that plaintiff's case under the Consumer Protection Law should not be dismissed.
http://www.paed.uscourts.gov/documents/opinions/07D1382P.pdf
Held, plaintiff was entitled to sue under the Consumer Protection Law, 73 PS 201-9.2, for an alleged violation of the state Title Insurance Company Act (TICA), 40 PS 910-37(h), without first exhausting her remedies under TICA.
Plaintiff brought her case when she refinanced her mortgage and was charged a "basic rate" of $978.75 rather than a "refinance rate" of $704.70, to which she was entitled under the Rate Manual of the Title Insurance Rating Bureau, 40 PS 910-37(h). When she found out about the improper charges, she sued under RESPA, 12 USC 2607, as well as for violations of the CPL, because of the improper charges under TICA.
Old Republic joined Citizens as a 3d party defendant, because Citizens, acting as its agent under TICA, had collected the improper charges, in spite of Old Republic having told Citizens about the proper changes under the Rate Manual.
Citizens' 12(b) (6) motion to dismiss was denied. Citizens claimed that Markocki had to exhaust her remedies under TICA, which says that an aggrieved person "may be heard" under TICA concerning its insurance rating, 40 PS 910-44(b).
Relying on the "weight of authority" under
- Cohen v. Ciicago Title Insurance Co., 2006 US Dist. Lexis 36689 (ED Pa. )
- Highmark Inc v. UPMC Health Plan, 276 F3d 160 (, 168 (3d Cir. 2001), and
- Ohio Casualty Group v. Argonaut Insurance, 525 A2d 1195, 1197 (Pa. 1987)
The court held that the remedy under TICA was discretionary, optional and incomplete rather than mandatory and exclusive, and that plaintiff's case under the Consumer Protection Law should not be dismissed.
Wednesday, November 21, 2007
insurance - denial - bad faith
Greene v. United Services Automobile Assn. - Superior Court - November 20, 2007
http://www.aopc.org/OpPosting/Superior/out/a20010_07.pdf
The court denied the plaintiffs' claim that their insurer denied their homeowner's insurance claim in bad faith. The court held that in order for a party to succeed on a statutory claim of bad faith under 42 Pa. C.S. sec. 8371 (actions on insurance policies) that party must fulfill a two-prong test. A plaintiff must show, by clear and convincing evidence, that
- the insurer did not have a reasonable basis for denying benefits under the policy and
- knew or recklessly disregarded its lack of a reasonable basis in denying the claim.
The court elaborated that the "motive of self-interest or ill will" level of culpability is not a third element required for a finding of bad faith, but it is probative of the second element, i.e.., the insurer knew or recklessly disregarded its lack of reasonable basis in denying the claim.
http://www.aopc.org/OpPosting/Superior/out/a20010_07.pdf
The court denied the plaintiffs' claim that their insurer denied their homeowner's insurance claim in bad faith. The court held that in order for a party to succeed on a statutory claim of bad faith under 42 Pa. C.S. sec. 8371 (actions on insurance policies) that party must fulfill a two-prong test. A plaintiff must show, by clear and convincing evidence, that
- the insurer did not have a reasonable basis for denying benefits under the policy and
- knew or recklessly disregarded its lack of a reasonable basis in denying the claim.
The court elaborated that the "motive of self-interest or ill will" level of culpability is not a third element required for a finding of bad faith, but it is probative of the second element, i.e.., the insurer knew or recklessly disregarded its lack of reasonable basis in denying the claim.
Monday, November 19, 2007
midwifery - licensing - Amish - standard for stay of admin. decision
Goslin v. State Board of Medicine - Cmwlth. Court - publication ordered November 16, 2007
http://www.aopc.org/OpPosting/CWealth/out/1830CD07_11-16-07.pdf
Unlicensed midwife with 26 years experience in Amish community denied application for stay of decision of state Board of Medicine directing her to discontinue her practice and imposing fines and penalties.
Aside from the substantive law, the decision is also noteworthy concerning the standards for a stay, especially the likelihood of success on the merits. The court said that the Supreme Court
in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 553, 467 A.2d 805 (1983) has set forth the standard a litigant must satisfy in seeking a stay of an adjudicatory body’s decision. Applicants for a stay or supersedeas must:
(1) make a strong showing of likelihood of success on the merits;
(2) demonstrate that, without the grant of a stay, the applicant will suffer irreparable injury;
(3) establish that the Court’s issuance of a stay will not result in substantial harm to other parties interested in the proceedings; and
(4) show that the issuance of a stay will not adversely affect the public interest.
[J]urists considering applications should not regard the first prong inflexibly. Rather, in exercising its discretion to grant or deny a stay pending appeal, this Court may properly grant a stay, even when a litigant has presented a substantial case on the merits, if the litigant’s showing with regard to the remaining three factors strongly supports the applicant’s request. Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005).
http://www.aopc.org/OpPosting/CWealth/out/1830CD07_11-16-07.pdf
Unlicensed midwife with 26 years experience in Amish community denied application for stay of decision of state Board of Medicine directing her to discontinue her practice and imposing fines and penalties.
Aside from the substantive law, the decision is also noteworthy concerning the standards for a stay, especially the likelihood of success on the merits. The court said that the Supreme Court
in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 553, 467 A.2d 805 (1983) has set forth the standard a litigant must satisfy in seeking a stay of an adjudicatory body’s decision. Applicants for a stay or supersedeas must:
(1) make a strong showing of likelihood of success on the merits;
(2) demonstrate that, without the grant of a stay, the applicant will suffer irreparable injury;
(3) establish that the Court’s issuance of a stay will not result in substantial harm to other parties interested in the proceedings; and
(4) show that the issuance of a stay will not adversely affect the public interest.
[J]urists considering applications should not regard the first prong inflexibly. Rather, in exercising its discretion to grant or deny a stay pending appeal, this Court may properly grant a stay, even when a litigant has presented a substantial case on the merits, if the litigant’s showing with regard to the remaining three factors strongly supports the applicant’s request. Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005).
Thursday, November 15, 2007
dependency - counsel for child - access to child
In the Interest of A.S. - Superior Court - November 15, 2007
http://www.aopc.org/OpPosting/Superior/out/a24014_07.pdf
Trial court improperly dismissed child welfare agency's dependency petition due to the agency's failure to have the child in court to testify. The appellate court held that the dismissel was error where the child's court-appointed counsel never had a chance to meet with the child because of the mother's refusal to give counsel access to the child, despite an order directing the mother to do so.
The trial court did not receive evidence from both sides. The mother violated the child's rights by denying access by counsel and preventing the child "from being heard in any fashion at a hearing regarding her own welfare."
http://www.aopc.org/OpPosting/Superior/out/a24014_07.pdf
Trial court improperly dismissed child welfare agency's dependency petition due to the agency's failure to have the child in court to testify. The appellate court held that the dismissel was error where the child's court-appointed counsel never had a chance to meet with the child because of the mother's refusal to give counsel access to the child, despite an order directing the mother to do so.
The trial court did not receive evidence from both sides. The mother violated the child's rights by denying access by counsel and preventing the child "from being heard in any fashion at a hearing regarding her own welfare."
statutes - enactment - legislative procedure - Pa. Constitution
Marcavage v. Rendell - Commonwealth Court - November 15, 2007
http://www.aopc.org/OpPosting/CWealth/out/195MD05_11-15-07.pdf
Article III, sec. 1, of the state constitution provides that “[n]o law shall be passed except by bill, and no bill shall be altered or amended, on its passage through either House, as to change its original purpose.”
This provision is violated by the passage of a bill which began as one criminalizing crop destruction but was amended during the legislative process to become one which punished ethic intimidation.
The relevant test is set out in Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth (PAGE), 877 A.2d 383 (Pa. 2005). This case established a "new two-prong test for determining whether legislation violates Article III, Section 1....First, the Court must consider the legislation's original purpose and compare it to the final purpose to determine whether there has been an alteration or amendment that changed the original purpose....Second, the Court must consider whether the title and contents of the legislation are deceptive in their final form....The challenged legislation must survive both inquiries to pass constitutional muster.
A court must consider a bill's purpose "in reasonably broad terms, so as to provide the General Assembly with full opportunity to amend and even expand a bill, and not run afoul of the constitutional prohibition on an alteration or amendment that changes its original purpose.....[T]he reviewing court should 'hypothesize, based on the text of the statute, as to a reasonably broad original purpose.'”
The court held here that there was no "single unifying purpose" between the original and amended bills, even though both concerned criminal conduct. The bills did "not regulate the same discrete activity" but rather "vastly different activities, albeit under the broad heading of crime." Even looking at the language in "reasonably broad terms," there was a change of purpose from the original to the amended bill, given that the latter had "no nexus to the conduct to which the original legislation was directed...."
http://www.aopc.org/OpPosting/CWealth/out/195MD05_11-15-07.pdf
Article III, sec. 1, of the state constitution provides that “[n]o law shall be passed except by bill, and no bill shall be altered or amended, on its passage through either House, as to change its original purpose.”
This provision is violated by the passage of a bill which began as one criminalizing crop destruction but was amended during the legislative process to become one which punished ethic intimidation.
The relevant test is set out in Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth (PAGE), 877 A.2d 383 (Pa. 2005). This case established a "new two-prong test for determining whether legislation violates Article III, Section 1....First, the Court must consider the legislation's original purpose and compare it to the final purpose to determine whether there has been an alteration or amendment that changed the original purpose....Second, the Court must consider whether the title and contents of the legislation are deceptive in their final form....The challenged legislation must survive both inquiries to pass constitutional muster.
A court must consider a bill's purpose "in reasonably broad terms, so as to provide the General Assembly with full opportunity to amend and even expand a bill, and not run afoul of the constitutional prohibition on an alteration or amendment that changes its original purpose.....[T]he reviewing court should 'hypothesize, based on the text of the statute, as to a reasonably broad original purpose.'”
The court held here that there was no "single unifying purpose" between the original and amended bills, even though both concerned criminal conduct. The bills did "not regulate the same discrete activity" but rather "vastly different activities, albeit under the broad heading of crime." Even looking at the language in "reasonably broad terms," there was a change of purpose from the original to the amended bill, given that the latter had "no nexus to the conduct to which the original legislation was directed...."
Wednesday, November 07, 2007
real property - tax sale - notice - presumption of proper posting
Picknick v. Washington County Tax Claim Bureau - Commonwealth Court - November 7, 2007
http://www.aopc.org/OpPosting/CWealth/out/253CD07_11-7-07.pdf
A tax claim bureau (TCB) satisfies its initial burden of proving -- and establishes a presumption of -- regularity and proper posting under the Real Estate Tax Sale Law, 72 P.S. 5860.101 et seq., where the TCB files an affidavit of posting. Thomas v. Montgomery Co. TCB, 553 A.2d 1044, 1046 (Pa. Cmwlth. 1989). Such proof establishes a prima facie case that the method of posting is "reasonable and likely to inform the taxpayer as well as the public at large of an intended real property sale." The property owner then has the burden to produce contradictory evidence.
In this case, the TCB produced an affidavit, photos and testimony about posting. The property owner did not present any evidence to rebut the presumption.
http://www.aopc.org/OpPosting/CWealth/out/253CD07_11-7-07.pdf
A tax claim bureau (TCB) satisfies its initial burden of proving -- and establishes a presumption of -- regularity and proper posting under the Real Estate Tax Sale Law, 72 P.S. 5860.101 et seq., where the TCB files an affidavit of posting. Thomas v. Montgomery Co. TCB, 553 A.2d 1044, 1046 (Pa. Cmwlth. 1989). Such proof establishes a prima facie case that the method of posting is "reasonable and likely to inform the taxpayer as well as the public at large of an intended real property sale." The property owner then has the burden to produce contradictory evidence.
In this case, the TCB produced an affidavit, photos and testimony about posting. The property owner did not present any evidence to rebut the presumption.
Monday, November 05, 2007
School Expulsion Upheld for Breaking into School District Computer System
The Commonwealth Court of Pennsylvania upheld the suspension of a student who gained unauthorized access to the school district computer system and supplied information to another student who used the information to access and disrupt the system.
The expulsion was upheld despite the fact that the Computer Use Policy only provided for a possible suspension of one to ten days for violation of the policy.
The Court held that the School Board had discretion as to appropriate penalties in disciplinary proceedings and properly exercised its discretion to expel Student. While the Computer Use Policy suggested penalties up to a 10-day suspension, it also indicated in the Appendix that such a punishment was only to act as a guide, and an individual case could warrant the modification of the listed penalties.
The Court noted that previously, the student had committed a serious and potentially damaging violation of the School District’s Computer Use Policy when he made false student identification cards, and this time he committed a more serious violation of the School District’s Computer Use Policy by decoding encrypted information and helping another student access extremely sensitive and private School District information. Given his history, including a prior suspension for computer misconduct, and given that his conduct is felonious under the Crimes Code, the Court found that the expulsion was entirely appropriate.
Decision: M.T. for A.T. v. Central York School District [PDF]
The expulsion was upheld despite the fact that the Computer Use Policy only provided for a possible suspension of one to ten days for violation of the policy.
The Court held that the School Board had discretion as to appropriate penalties in disciplinary proceedings and properly exercised its discretion to expel Student. While the Computer Use Policy suggested penalties up to a 10-day suspension, it also indicated in the Appendix that such a punishment was only to act as a guide, and an individual case could warrant the modification of the listed penalties.
The Court noted that previously, the student had committed a serious and potentially damaging violation of the School District’s Computer Use Policy when he made false student identification cards, and this time he committed a more serious violation of the School District’s Computer Use Policy by decoding encrypted information and helping another student access extremely sensitive and private School District information. Given his history, including a prior suspension for computer misconduct, and given that his conduct is felonious under the Crimes Code, the Court found that the expulsion was entirely appropriate.
Decision: M.T. for A.T. v. Central York School District [PDF]
Wednesday, October 31, 2007
consumer - motor vehicles - MVSFA - private right of action
Nawrocki v. Faulkner Ciocca Ford - ED Pa. - October 29, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Under the facts of this case, Plaintiffs did not have a private cause of action under the Motor Vehicle Sales Finance Act (MVSFA), 68 P.S. sec. 601 et seq, for claims that a) the notice of repossession violated the MVSFA and b) the car dealer improperly applied for financing in the plaintiffs' name.
The "Pennsylvania Supreme Court has not ruled on whether the MVSFA creates a private right of action." However, in Witthoeft v. Kiskaddon, 733 A.2d 623, 616 (Pa. 1999), the Court "adopted a portion of the test from Cort v. Ash, 422 US 66, 78 (1975), to determine when a court may infer a private right of action under a statute"
Under the Witthoeft case, Pennsylvania courts consider whether
- plaintiff belongs to the class for whose special benefit the statute was enacted
- there is is an indication of any explicit or implicit legislative intent to create or deny such a remedy
- a private right of action would be consistent with the purpose of the legislative scheme.
The second of these "is the most important and [is] given the greatest weight."
The court noted that several sections of the MVSFA do specifically create private rights of action for their violation, citing examples. However, the court said that it could "not imply a private right of action in the entire MVSFA simply because the MVSFA contains provisions that the buyer can enforce." Such a reading would "ignore the difference between a statute that creates a private right of action and one that supplies an element of an existing cause of action. When a statute creates a private right of action, a plaintiff need only make out a violation of the statute to recover. On the other hand, when a statute supplies an element of a cause of action, the plaintiff must make out the violation of the statute and all of the other elements of the relevant cause of action before she can recover." (emphasis in original)
In this case, the court held that the violation of the sec. 623 notice provision supplied one element of a cause of action for the tort of conversion, i.e., interference with the plaintiff's use or possession of her car without her consent and "without lawful justification." (emphasis in original). However, "the MVSFA does not make a defective repossession notice in and of itself the subject of an implied cause of action."
There is no specific section of the MVSFA that covers an alleged application by a car dealer for financing in plaintiffs' names, without their knowledge or consent (even though such "behavior would likely violate the Fair Credit Reporting Act, which plaintiffs duly invoke.")
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Under the facts of this case, Plaintiffs did not have a private cause of action under the Motor Vehicle Sales Finance Act (MVSFA), 68 P.S. sec. 601 et seq, for claims that a) the notice of repossession violated the MVSFA and b) the car dealer improperly applied for financing in the plaintiffs' name.
The "Pennsylvania Supreme Court has not ruled on whether the MVSFA creates a private right of action." However, in Witthoeft v. Kiskaddon, 733 A.2d 623, 616 (Pa. 1999), the Court "adopted a portion of the test from Cort v. Ash, 422 US 66, 78 (1975), to determine when a court may infer a private right of action under a statute"
Under the Witthoeft case, Pennsylvania courts consider whether
- plaintiff belongs to the class for whose special benefit the statute was enacted
- there is is an indication of any explicit or implicit legislative intent to create or deny such a remedy
- a private right of action would be consistent with the purpose of the legislative scheme.
The second of these "is the most important and [is] given the greatest weight."
The court noted that several sections of the MVSFA do specifically create private rights of action for their violation, citing examples. However, the court said that it could "not imply a private right of action in the entire MVSFA simply because the MVSFA contains provisions that the buyer can enforce." Such a reading would "ignore the difference between a statute that creates a private right of action and one that supplies an element of an existing cause of action. When a statute creates a private right of action, a plaintiff need only make out a violation of the statute to recover. On the other hand, when a statute supplies an element of a cause of action, the plaintiff must make out the violation of the statute and all of the other elements of the relevant cause of action before she can recover." (emphasis in original)
In this case, the court held that the violation of the sec. 623 notice provision supplied one element of a cause of action for the tort of conversion, i.e., interference with the plaintiff's use or possession of her car without her consent and "without lawful justification." (emphasis in original). However, "the MVSFA does not make a defective repossession notice in and of itself the subject of an implied cause of action."
There is no specific section of the MVSFA that covers an alleged application by a car dealer for financing in plaintiffs' names, without their knowledge or consent (even though such "behavior would likely violate the Fair Credit Reporting Act, which plaintiffs duly invoke.")
Tuesday, October 30, 2007
Consumer Protection Law - pleading - particularity
Nawrocki v. Faulkner Ciocca Ford - ED Pa. - Ocftober 29, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Plaintiffs adequately pleaded their case with sufficient "heightened particularity" under the Pennsylvania Consumer Protection Law, 73 P.S. sec. 201-1 et seq., and F. R. Civ. 9(b), to withstand a Rule 12(b)(6) motion.
Tran v. Metropolitan Life Ins. Co., 408 F.3d 130, 140-1 (3d Cir. 2005), requires such a plaintiff to "make out the elements of common law fraud" -- which plaintiffs did in this case, when they "palpably alleged the necessary facts with far more particularity that the 'date, time or place" Rule 9(b) requires."
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Plaintiffs adequately pleaded their case with sufficient "heightened particularity" under the Pennsylvania Consumer Protection Law, 73 P.S. sec. 201-1 et seq., and F. R. Civ. 9(b), to withstand a Rule 12(b)(6) motion.
Tran v. Metropolitan Life Ins. Co., 408 F.3d 130, 140-1 (3d Cir. 2005), requires such a plaintiff to "make out the elements of common law fraud" -- which plaintiffs did in this case, when they "palpably alleged the necessary facts with far more particularity that the 'date, time or place" Rule 9(b) requires."
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