Consumer Law What Why Me and How by

Consumer Law: What, Why Me, and How? by John O’Neal Law Office www. oneallawoffice. com 336. 510. 7904 January 17, 2019 O'Neal-What+Why+How Consumer Law-LTTPWalking the 1

What is Consumer Law? n n n n Harassing/Unfair Debt Collection Repossessions Credit Reporting Truth in Lending Auto Fraud Lemon Law/Used Vehicle Issues Motor Vehicle Repairs Mortgage Fraud n n n n Student Loan Issues Warranty claims Bankruptcy Foreclosure Litigation Landlord-Tenant Issues Credit repair Homeowner issues/Tenant issues And more…. O'Neal-What+Why+How Consumer Law-LTTPWalking the 2

Consumer Law Statutes-Federal • Retail Installment Sales Act • Conditional Delivery • Truth in Lending Act • Equal Credit Opportunity Act • Fair Credit Reporting Act • Regulation M • Fair Credit Billing Act • Real Estate Settlement Procedures Act • Credit Repair Organization Act • Consumer Leasing Act • FTC Holder Rule • Fair Debt Collection Practices Act O'Neal-What+Why+How Consumer Law-LTTPWalking the

Consumer Law Statutes-State n n n N. C. G. S. § 25 A-1 et seq. -Retail Installment Sales Act N. C. G. S. § 20 -75. 1 Conditional Delivery N. C. G. S. § 75 -50 et seq. --Debt Collection Act N. C. G. S. § 58 -70 et seq. — regulates collection agencies N. C. G. S. § 20 -294 -prohibited acts by vehicle dealers N. C. G. S. § 20 -71. 4 and N. C. G. S. § 20 -305. 1(e)—vehicle disclosures n n n N. C. G. S. §§ 75 -1. 1; 75 -16 et seq. a/k/a UDAP statute N. C. G. S. 25 -9 -601 et seq. — Article 9 of UCC; relates to sales N. C. G. S. § 20 -354 et seq. motor vehicle repairs N. C. G. S. § 20 -348 et seq. lemon law N. C. G. S. § 75 -60 et seq. and N. C. G. S. § 1 -539. 2 C—identity theft N. C. G. S. § § 83 thru 94— occupational statutes O'Neal-What+Why+How Consumer Law-LTTP 4

Common law claims raised in Consumer Law cases n n n n n Breach of contract/warranty Breach of covenant of good faith and fair dealing Fraud Unconscionability Conversion Negligence Usury Intentional/negligent infliction of emotional distress Malicious prosecution Defamation O'Neal-What+Why+How Consumer Law-LTTP 5

Two key statutes to protect consumers Fair Debt Collection Practices Act [FDCPA] (15 U. S. C. § 1692 et seq. )—applies to persons and entities collecting on the debt of another (Ex: collection agencies, collection lawyers, junk debt buyers) NC Debt Collection Act [NCDCA](N. C. G. S. § 75 -50 et seq. )---applies to all persons and entities collecting a debt incurred for personal, family, household, or agricultural purposes even if it is their own debt Prevents THUD: Threats, Harassment, Unreasonable Publication, Deceptive representation, Unconscionable Means Damages= Actual damages + statutory damages up to $1, 000. 00 per defendant + costs of the action + reasonable attorney fees Damages= Actual damages + statutory damages from $500. 00 to $4, 000. 00 per violation + costs of the action + reasonable attorney fees O'Neal-What+Why+How Consumer Law-LTTPWalking the

Why should you care about consumer law issues? n n n Develop a niche practice a/k/a stand out from the competition Possible “new claims” in some of your existing cases and a good claim for you—maybe statutory damages, treble damages, and attorneys’ fees Gain valuable and unique experience with motions, brief-writing, arbitration, settlement discussions, and trial—which can help you in your other cases Help reign in and prevent abuses in the marketplace and community Many people in need of competent legal representation Opportunity for “feel good” work and litigation O'Neal-What+Why+How Consumer Law-LTTPWalking the 7

Common categories of consumer law claims n n n Failure to disclose/Deception Breach of contract/warranty Limitation of contract terms Collection issues Statutory violations O'Neal-What+Why+How Consumer Law-LTTP 8

Consumer Law Overlaps into Other Areas…. Estates (creditors’ claims) Family law (creditors relating to property owned by spouses) Personal injury (lienholders seeking to get paid) Workers compensation (balance billing) Nursing home negligence (counterclaim by home for unpaid bill or ”dumping” by home of resident who has not paid bill) O'Neal-What+Why+How Consumer Law-LTTPWalking the

Case Screening n n n n Compelling facts Sympathetic and cooperative client Substantive violations with “real” damages Defendant(s) with checkered past and/or bad conduct Compensable claims (is there money available? ) Venue selection Claims should be “quality over quantity” (not the kitchen sink approach) O'Neal-What+Why+How Consumer Law-LTTP 10

Target Defendants KEY: Find the money and, if possible, less-thansympathetic actors n n n n n Insurance company Vehicle dealer (especially smaller, used, “Mom and Pop” shops) Bond company/surety Mortgage lender Real estate company Rent-to-own company Retail store Payday lender Bank and financial institution O'Neal-What+Why+How Consumer Law-LTTP 11

Case example: Debt collection violation (SOL) Consumer obtains credit card account with major out of state credit card company and ultimately falls into default. Company sues consumer in North Carolina on account debt assuming the statute of limitations for the company’s home state applies. Consumer asserts counterclaims against company asserting the NC SOL applies. Review of case law indicates NC SOL applies which means the case was filed too late. Consumer obtains dismissal of all the company’s claims and gains a settlement that wipes out the remaining account debt and results in compensation plus attorney fees. O'Neal-What+Why+How Consumer Law-LTTP 12

Case example: Violent Wrongful Repossession Wrongful repossession of consumer’s vehicle and assault of consumer during the course of the repossession. Suit filed in a county in Western NC against lender and towing company that repossessed vehicle; case ended in settlement less than 4 months after filing. O'Neal-What+Why+How Consumer Law-LTTP 13

Case example: Fraud, UDAP Boxer approaches several promoters and seeks funding for his next fight. Boxer signs an agreement with each promoter to repay their respective investment on fight night. Boxer receives the funding and fails to repay promoters. One promoter sues and obtains a default judgment against boxer for treble damages and attorneys fees and costs. Boxer has the state-required surety bond which pays some of the judgment; promoter with judgment still seeking to recover on the remainder of the judgment. O'Neal-What+Why+How Consumer Law-LTTP 14

Case example: Debt collection violation Homeowner owns condo in a community and pays association dues. Homeowner becomes delinquent on dues as do several other homeowners. For over a year the Association posts a “deadbeat list” of the names and unit numbers of homeowners who are delinquent on their association dues. The list is posted on a bulletin board at the mailbox center for the community. One homeowner contacts counsel and files suit against Association. Case is settled favorably for homeowner prior to mediation. O'Neal-What+Why+How Consumer Law-LTTP 15

Be Ready! n n n Be ready to learn the law and more Be ready to educate judges, lawyers, mediators, and juries Be ready for motions, hearings, depositions, and trial Be ready to think outside the box Be ready to take some chances O'Neal-What+Why+How Consumer Law-LTTP 16

Preparation for Practice n n Get a mentor Attend a substantive seminar/convention Review CLE/seminar materials Consult someone before you file suit O'Neal-What+Why+How Consumer Law-LTTP 17

Resources n n n n North Carolina Advocates for Justice Consumer Areas of Practice Section—www. ncaj. com National Association of Consumer Advocates-www. consumeradvocates. org Legal Aid of North Carolina--www. legalaidnc. org North Carolina Attorney General’s Office Consumer Protection Division--www. ncdoj. gov/Consumer. aspx Federal Trade Commission--www. consumer. ftc. gov Consumer Financial Protection Bureau--www. consumerfinance. gov National Consumer Law Center materials—www. nclc. org National Association of Consumer Bankruptcy Attorneys: www. nacba. org O'Neal-What+Why+How Consumer Law-LTTP 18

FINAL THOUGHTS & QUESTIONS O'Neal-What+Why+How Consumer Law-LTTPWalking the 19