Sign in to follow this  
ProSe007

Kansas Case Laws/rules of civil procedure/Sample Forms/etc.

Recommended Posts

KFK 555 .A6 K35 1998 Abbott, Bob. & Green, Carol G. Kansas appellate practice handbook.

Topeka, Kan.: Kansas Bar Association, c1998.

KFK 529.5 .K36 P73 1996 Church, Daniel F. [et al.]. A practical guide to federal court rules

and procedure in Kansas. Eau Claire, WI: National Business Institute, 1996.

KFK 555 .C75 1992 (Reserve) Crittenden, Constance S. Crittenden's guide: appellate practice

in Kansas. Topeka, KS: Lone Tree Publishing, c1992.

KFK 530 .Z9 K35 1989 Comer, Roberta L. Kansas discovery, pretrial and trial procedures :

developing skills for law office professionals. Eau Claire, Wis.: Professional Education Systems,

1989.

KFK 538 .A2 C58 1992 Gale, Kenneth G. Civil trial procedures in Kansas. Eau Claire, Wis.:

National Business Institute, c1992.

KFK 529 .A2 2003 Gard, Spencer A. & Casad, Robert C. Kansas Code of Civil Procedure

annotated. Eagan, MN: Thomson West, c2003-. Also available on Reserve and Reference in the

Faculty Publications Collection.

KF 8755.5 .K2 R93 1997 (Reserve) Johnson, Alan V. & Wood, Brian. Federal practice

handbook: United States District Court for the District of Kansas. Topeka, Kan.: Kansas Bar

Association, 1997.

KFK 530 .A1 K34 Kansas Association of Defense Counsel. KADC newsletter. Topeka, KS:

The Association.

KF 8840 .A2 F423 1994 Kansas Bar Association. Federal civil practice: the new rules

revisited : dealing with change and challenge. Topeka, Kan.: Kansas Bar Association, 1994.

KFK 537 .A75 F43 1995 Kansas Bar Association. Federal rules: are they working? Topeka,

Kan.: Kansas Bar Association, 1995.

KFK 530 .P73 1994 Kansas Bar Association. Practical tips in civil procedure. Topeka, Kan.:

Kansas Bar Association, c1994.

KFK 516 .D68 1996 (Reserve) Kansas. District Court (7th Judicial District). Rules of court:

Seventh Judicial District, Douglas County Kansas, effective March 10, 1989 ... amended June

13, 1996. Lawrence, Kan.: The Court, 1996.

KFK 518 .A84 2000 Kansas Judicial Council, Advisory Committee on Municipal Court

Manual Update. Kansas municipal court manual: traffic and municipal ordinance violations.

Topeka: Kansas Judicial Council, 1986-. Also available on Reserve.

KFK 515 .Z9 K35 Kansas Judicial Council. Benchbook Advisory Committee. Kansas

benchbook. Topeka: Kansas Judicial Council, c1978-. Also available on Reserve.

KFK 542 .A65 K349 1997 Kansas Judicial Council. PIK-Civil Advisory Committee. Pattern

instructions, Kansas 3d. Civil. Rochester, NY: West Group, 1997-. Available at Reference and

Reserve.

KFK 90 .T5 M36 1990 McNeil, Christopher B. Kansas statutes of limitations and time

standards. Topeka, Kan.: Kansas Bar Association, 1990. Also available on Reserve.

KFK 196.3 .A8 K4 1989 O'Connor, John G. Kansas preparing and trying the automobile

accident case. Eau Claire, Wis.: Professional Education Systems, Inc. c1989.

KF 8755.5 .K2 R93 1997 (on Reserve) Ryan, Shelley A. Federal practice handbook, United

States District Court for the District of Kansas. Wichita, Ks., 1997.

KFK 538 .S36 2006 Sampson, William R.; Hays, Bill J. & Rebein, Paul W. Kansas trial

handbook. 2nd edition. St. Paul, MN: West Group, 2006. Also available on Reserve.

Post is for my info only

Share this post


Link to post
Share on other sites

UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

KANSAS CITY COURTHOUSE

STEVE STOLZENBURG, )

)

Plaintiff, )

)

v. ) No.

)

BERMAN & RABIN PA, )

)

Defendant. )

PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL

STEVE STOLZENBURG (Plaintiff), through his attorneys, KROHN & MOSS, LTD.,

alleges the following against BERMAN & RABIN PA, (Defendant):

INTRODUCTION

1. Plaintiff’s Complaint is based on the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et

seq. (FDCPA).

2. Defendant acted through its agents, employees, officers, members, directors, heirs,

successors, assigns, principals, trustees, sureties, subrogees, representatives, and insurers.

JURISDICTION AND VENUE

3. Jurisdiction of this court arises pursuant to 15 U.S.C. 1692k(d), which states that such

actions may be brought and heard before “any appropriate United States district court

without regard to the amount in controversy.”

4. Defendant is located and conducts business in the state of Kansas, and therefore, personal jurisdiction is established.

PLAINTIFF’S COMPLAINT

5. Venue is proper pursuant to 28 U.S.C. 1391(B)(2).

6. Declaratory relief is available pursuant to 28 U.S.C. 2201 and 2202.

PARTIES

7. Plaintiff is a natural person residing in Barton Clyde, Kansas.

8. Plaintiff is a consumer as that term is defined by 15 U.S.C. 1692a(3), and according to

Defendant, Plaintiff allegedly owes a debt as that term is defined by 15 U.S.C. 1692a(5).

9. Defendant is a debt collector as that term is defined by 15 U.S.C. 1692a(6), and sought to

collect a consumer debt from Plaintiff.

10. Defendant is a Kansas Corporation with a business office in Overland Park, Kansas.

11. Defendant is a collection agency that in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection.

FACTUAL ALLEGATIONS

12. Defendant constantly and continuously placed collection calls to Plaintiff seeking to speak

with Plaintiff’s brother, Mike.

13. Defendant calls Plaintiff on his home telephone number: 785-446-XXXX.

14. Defendant has been calling Plaintiff for nearly three months.

15. Plaintiff has repeatedly informed Defendant that Plaintiff is not the consumer that Defendant

is looking for.

16. Defendant continues to place collection calls directly to Plaintiff despite this.

THIS POST IS FOR MY INFORMATION ONLY.

Edited by racecar

Share this post


Link to post
Share on other sites

WHEREFORE, Plaintiff, STEVE STOLZENBURG, respectfully requests judgment be

entered against Defendant, BERMAN & RABIN PA, for the following:

PLAINTIFF’S COMPLAINT 3

COUNT I

DEFENDANT VIOLATED THE FAIR DEBT COLLECTION PRACTICES ACT

17. Defendant violated the FDCPA based on the following:

a. Defendant violated §1692d of the FDCPA by engaging in conduct of which the

natural result is the abuse and harassment of the Plaintiff.

b. Defendant violated §1692d(5) of the FDCPA by causing a telephone to ring

repeatedly and continuously with the intent to annoy, abuse, and harass Plaintiff.

c. Defendant violated §1692e(10) of the FDCPA by engaging in the false and

deceptive practices of placing calls to Plaintiff despite knowing that he is not the

consumer that Defendant is seeking to collect from.

WHEREFORE, Plaintiff, STEVE STOLZENBURG, respectfully requests judgment be

entered against Defendant, BERMAN & RABIN PA, for the following:

18. Statutory damages of $1000.00 pursuant to the Fair Debt Collection Practices Act, 15 U.S.C.

1692k,

19. Costs and reasonable attorneys’ fees pursuant to the Fair Debt Collection Practices Act, 15

U.S.C. 1692k

20. Any other relief that this Honorable Court deems appropriate.

Plaintiff designates Kansas City as place for trial.

RESPECTFULLY SUBMITTED,

By: _____/s/ Adam Maxwell ___

Adam Maxwell

Attorneys for Plaintiff

Krohn & Moss, Ltd.

10474 Santa Monica Blvd., Suite 401

Los Angeles, CA 90025

DEMAND FOR JURY TRIAL

PLEASE TAKE NOTICE that Plaintiff, STEVE STOLZENBURG, demands a jury trial in this case.

PLAINTIFF’S COMPLAINT

VERIFAICATION OF COMPLAINT AND CERTIFACATION

STATE OF KANSAS

Plaintiff,STEVE STOLZENBURG,states the following:

1.I am the Plaintiff in this civil proceeding.

2.I have read the above-entitled civil Complaint prepared by my attorneys

and i believe that all the facts contained in it are true,to the best of my knowlage,information and belief formed after reasonable inquiry.

3.I believe that this civil Complaint is well grounded in fact and warranted

by existing law or by a good faith argument for the extention,modification or reversal of existing Law.

4.I believe that this civil Complaint is not interposed for any improper purpose,such as to harass any Defendant(s),cause unnecessary delay to any Defendant(s),or create a needless increase in the cost of litigation to any Defendant(s)named in the Complaint.

5.I have filed this complaint in good faith and solely for the purposes set forth in it.

6.Each and every exhibit I have provided to my attorneys which has been attached to this Complaint is a true and correct copy of the original.

7.Except for clearly indicated redactions made by my attorneys where appropriate,i have not altered,changed,modified or fabricated these exhibits,except that some of the attached exhibits may contain my own handwritten notations.

Pursauant to 28 U.S.C. 1746(2),I,STEVE STOLZENBURG,hearby declaire (or certify,verify or state)under penalty of perjury that the forgoing is true and correct.

THIS POST IS FOR MY INFORMATION ONLY.

Edited by racecar

Share this post


Link to post
Share on other sites

UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

STEVE STOLZENBURG, )

)

Plaintiff, ) CASE NO.: 10-cv-02646-MLB-KMH

)

v. )

) STIPULATED

BERMAN & RABIN P.A., ) PROTECTIVE ORDER

)

Defendant. )

____________________________________)

STIPULATION FOR PROTECTIVE ORDER

COMES NOW Plaintiff, Steve Stolzenburg, by and through his attorney of record, and

Defendant, Berman & Rabin, P.A., by and through its attorney of record, pursuant to Federal Rule

26©, and enter this Stipulation for Protective Order for Plaintiff and for Defendant to be bound by

said order in connection with the above-captioned lawsuit, for the following reasons:

1. Defendant acts as a debt collector, as that term is defined by 15 U.S.C. § 1982a(6).

2. Plaintiff has brought a claim against Defendant, alleging violations of the Fair Debt

Collection Practices Act.

3. Plaintiff has propounded discovery requests on Defendant, and requested that

Defendant provide information regarding its training and operating procedures and recordings of

attempts to contact Plaintiff by telephone.

4. This information is proprietary, privileged, confidential, provides information

regarding business practices, and is irrelevant to the facts and issues in this case.

5. Plaintiff and Defendant have, however, agreed that Defendant will produce the

requested training and operating procedures and phone recordings if this Court enters a Protective

Order, requiring Plaintiff and his counsel to keep all information produced confidential, any

information contained therein will not be examined, played, or discussed with anyone other than the

parties and their counsel, and preventing Plaintiff and/or his counsel, whether individually or

together, from referring to or relying upon these procedures and recordings in any other claims,

demands, and/or lawsuits involving Defendant.

6. Plaintiff and Defendant further agree that production of these documents and

recordings during discovery and subject to this Protective Order is not a waiver of Defendant’s right

to object to these documents as inadmissible at trial.

7. That this Order shall be binding upon all parties hereto, upon their attorneys, their

attorneys’ successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, affiliates, employees, agents, independent contractors, and all other persons

over which they have control.

WHEREFORE, Plaintiff and Defendant respectfully enter this Stipulation, and request this

Court enter an Order approving the terms of the Protective Order as set forth in this Stipulation, and

for such other and further relief as the Court deems just and proper.

IT IS SO STIPULATED.

DATED: 3/16/11

____/s/ Adam Maxwell______

Adam Maxwell

Krohn & Moss, Ltd.

10474 Santa Monica Blvd., Suite 401

Los Angeles, CA 90025

Phone: (323) 988-2400

Fax: (800) 856-5312

Attorney for Plaintiff

THIS POST IS FOR MY INFORMATION ONLY.

Edited by racecar

Share this post


Link to post
Share on other sites

A creditor seeking to recover on an obligation has the burden of proof to show that it has the right to

seek collection on the debt because it owns the consumer's obligation or State law gives it the right to

sue on behalf ofthe owner, Great Seneca Fin. C07p. v. Leanna, 2006 WL 2536275 (Conn. Super. Ct.

August 2006); C & W Asset Acquisition, LLC v. Somogyi, 136 S.W. 3d 134 (Mo. Ct. App. 2004);

Citibank (SD) v. Martin, 807 N.Y.S. 2d 284 Civ. Ct. 2005).

Case law clearly demonstrates that a collector must show a continuous, unbroken chain of assignments'from the original creditor to the entity collecting on the debt.

In re Leverette, 378 B.R. 793 (B.D. Tex.

2007); Wright v. Asset Acceptance Corp., 2000 WL 33216031 (S.D. Ohio Jan. 3, 2000);

In re Kendall,

380 B.R. 37 Bankr. N.D. Okla. 2007); Rushmore Recovers X, LLCv. Skolnick, 847 N.Y.S. 2d 823 (Dist.Ct.

2007); and National Check Bureau, Inc. v. Cody, 2007 WL 175762 (Ohio Ct. App. Jan 27, 2005).

An earlier debt buyer can assign to the current collector only the rights it itself acquired from its

assignor, Wrightv. Asset Acceptance Corp., 2000 WL 33216031 (S.D. Ohio Jan. 3,2000); Rushmore

Recovers X, LLC v. Skolnick, 847 N.Y.S. 2d 823 (Dist. Ct. 2007).

A creditor seeking to recover on an obligation has the burden of proof to show that it has the right to

seek collection on the debt because it owns the consumer's obligation or State law gives it the right to

sue on behalf of the owner, Great Seneca Fin. Corp. v. Leanna, 2006 WL 2536275 (Conn. Super. Ct.

August 2006); Midwest Health Mgmt., Inc. v. Walker, 208 S.W. 3d 295 (Mo. Ct. App. 2006); C & W

Asset Acquisition, LLC v. Somogyi, 136 S.W. 3d 134 (Mo. Ct. App. 2004); Citibank (SD) v. Martin, 807

N.Y.S. 2d 284 (Civ. Ct. 2005).

Worldwide Asset Purchasing described the requirements to adequately plead and

prove an account:

"An

account must show the name of the party charged. Itbegins with a balance,

preferably at zero, or with a sum recited that can qualify as an account stated, but

at least the balance should be aprovable sum. Following the balance the item or

items, dated and identifiable by number or otherwise, representing charges, or

debits, and credits, should appear. Summarization is necessary showing a running

or developing balance or an arrangement which permits the calculation of the ",balance

claimed to be due." Id., citing Asset Acceptance Com. v. Proctor, 804

N.E.2d 975, 977 (Ohio Ct. App. 2004).

Althoughthe Plaintiffhas attached contract language governing an account, the

Plaintiffhas failed to plead or attach the interest rates and fees that the parties agreed to

as part ofthe credit card agreement. Regulation Z, promulgated by the Federal Reserve

under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., requires that interest rates, fees,

and finance charges applicable to a credit card account be disclosed in the credit card applicationin a tabular format, commonly known as the "Schumer Box." See 12 C.F.R.

§226.5a;see also Roberts v. Fleet Bank, 342 F.3d 260, 265-266 (3d Cir. 2003)

(describing the disclosure requirements ofthe Schumer Box).

The information contained in the SchumerBox is a material part of the writing

upon which the Plaintiffs claim is based; it establishes the agreed-upon contract terms

for the interest rates and fees. Without attaching the Schumer Box or setting forth its

substance in the complaint, the Plaintiff does not adequately plead the basis for the

amounts of interest, late fees, returned check fees, and over-the-limit fees alleged to be owed. The failure to either attach a copy ofthe original Schumer Box and any subsequent amendments, or to set forth the substance ofthe information contained in the

SchumerBox in the complaint, constitutes a failure under chapter 60-209(H) to attach a

material part of the writing or reasonably identifying the same and stating the substance thereof or it may be recited at length in the pleading upon which the claim is based.

THIS POST IS FOR MY INFORMATION ONLY.

Edited by racecar

Share this post


Link to post
Share on other sites

RUBIO v. CAPITAL ONE BANK

Raquel RUBIO, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. CAPITAL ONE BANK, Defendant-Appellee.

No. 08-56544.

Argued and Submitted Feb. 3, 2010. -- July 21, 2010

Before BETTY B. FLETCHER, HARRY PREGERSON, and SUSAN P. GRABER, Circuit Judges.

Behram V. Parekh (argued) and Joshua A. Fields, Kirtland & Packard LLP, El Segundo, CA, for the plaintiff-appellant.James F. McCabe (argued), Nancy R. Thomas, and Michelle N. Comeau, Morrison & Foerster LLP, San Francisco, CA, for the defendant-appellee.

OPINION

This appeal arises from a direct-mail credit card solicitation that Plaintiff Raquel Rubio received from Defendant Capital One Bank. The solicitation disclosed a “fixed” annual percentage rate of 6.99% on purchases and balance transfers and named three conditions under which that rate could increase. About three and a half years after Rubio applied for and received Capital One's credit card, the interest rate on purchases and balance transfers increased to 15.9%, even though none of the three triggering conditions occurred. Rubio filed suit, alleging violations of the Truth in Lending Act (TILA), the California Unfair Competition Law (UCL), and a breach of contract. The district court dismissed each of these claims under Federal Rule of Civil Procedure 12(B)(6), and Rubio appealed. We reverse in part, affirm in part, and remand.

I

Rubio's First Amended Complaint alleged that in or about February 2004, she received a credit card solicitation in the mail from Capital One, informing Rubio in an opening letter that she had “been pre-selected ․ for a Capital One Platinum MasterCard featuring a low 6.99% fixed APR on balance transfers and purchases.” In the solicitation's so-called “Schumer Box,” a table required by federal law, the credit card's APR for purchases was described as a “fixed rate of 6.99%,” with the words in ten-point type and the number printed in large, bold type. Next to the Schumer Box's prominent heading, “ANNUAL PERCENTAGE RATE (APR) for purchases,” was an asterisk linked to a paragraph printed just below the Schumer Box. That paragraph stated in ten-point type:

All your Annual Percentage Rates (APRs) are subject to increase if any of the following conditions (“Conditions”) occur: (i) you fail to make a payment to us when due; (ii) your account is overlimit; (iii) or your payment is returned for any reason. All APRs will change with the beginning of the billing period after the period in which the condition occurred. The first time any of the Conditions occur [sic], your purchase and special transfer APRs (if applicable) may be increased to a rate of 12.9% ANNUAL PERCENTAGE RATE (0.03534% daily periodic rate). If any of the Conditions occur [sic] twice within any 6-month period, all of your APRs may be increased to a rate of 25.9% ANNUAL PERCENTAGE RATE (0.07096% daily periodic rate).

Outside the Schumer Box, but farther down on the same page, there was a heading that read “Terms of Offer.” Under that heading, printed in eight-point type, the solicitation provided, as part of the terms: “I will receive the Capital One Customer Agreement and am bound by its terms and future revisions thereof. My Agreement terms (for example, rates and fees) are subject to change.”

Rubio applied for the Capital One MasterCard, and received it, along with a Cardholder Agreement, in March 2004. In the Agreement, Capital One reserved the right to “amend or change any part of your Agreement, including periodic rates and other charges, or add or remove requirements ․ at any time.”

According to the First Amended Complaint, the Capital One MasterCard provided Rubio with a 6.99% APR on all balance transfers and purchases from March 2004 to August 2007. Rubio never submitted a late payment, exceeded her credit limit, or had her payment returned. On August 3, 2007, however, Rubio received written notification from Capital One that her APR of 6.99% would increase to 15.9%. Rubio could avoid the increase only by closing her credit card account and paying off the balance on the card by September 11, 2007. Neither of Rubio's two Complaints alleges whether Rubio chose to retain or to close her account.

Rubio's First Amended Complaint included claims for breach of contract and violation of the UCL, and attached the Capital One MasterCard solicitation as an exhibit. After briefing, the district court dismissed the breach of contract claim.

Rubio then filed a Second Amended Complaint that made very slight changes in factual allegations and added a TILA claim to the existing UCL claim. Like the First Amended Complaint, it attached Capital One's solicitation as an exhibit. Capital One moved to dismiss Rubio's TILA and UCL claims, and the district court granted the motion.

In reviewing de novo the district court's Rule 12(B)(6) dismissal, we, like the district court, consider the credit card solicitation, see Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995), as well as the Cardholder Agreement, which Capital One submitted but “whose contents are alleged in [the] complaint and whose authenticity no party questions,” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002).

II

A

Share this post


Link to post
Share on other sites

Direct-mail credit card solicitations are among the credit disclosures that TILA regulates. TILA requires that all such solicitations disclose, among other information, “[e]ach annual percentage rate applicable to extensions of credit under” the credit card agreement. 15 U.S.C. § 1637©(1)(A)(i)(I) (2006). This APR disclosure must be made “clearly and conspicuously,” id. § 1632(a), and “in the form of a table,” id. § 1632©(2)(A). This table is popularly called the “Schumer Box.”

TILA also delegates to the Federal Reserve Board of Governors the duty to implement TILA's disclosure requirements. Id. § 1604(a). Under that delegation, the Board has promulgated “Regulation Z,” 12 C.F.R. pt. 226 (2009), to which provisions we defer unless “demonstrably irrational.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980). To implement TILA's mandate that a Schumer Box disclose credit card APRs, Regulation Z requires a Schumer Box to disclose “[e]ach periodic rate that may be used to compute the finance charge on an outstanding balance ․, expressed as an annual percentage rate.” 12 C.F.R. § 226.5a(B)(1). Regulation Z provides that this APR disclosure, like other credit-card disclosures, must “reflect the terms of the legal obligation between” creditor and consumer. Id. § 226.5©.

In applying TILA and its implementing regulations, we “require absolute compliance by creditors,” Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir.2009), and “[e]ven technical or minor violations of the TILA impose liability on the creditor,” Jackson v. Grant, 890 F.2d 118, 120 (9th Cir.1989).

B

In her only unwaived TILA claim, Rubio contends that the Schumer Box in Capital One's solicitation misleadingly disclosed the APRs that could be charged under the Cardholder Agreement. According to Rubio, by describing the APR as “fixed” at 6.99% and listing only three conditions under which the APR could be changed, the Schumer Box misled her into believing that 6.99% rate could increase only if one of the three specified events occurred. In doing so, Rubio argues, Capital One's disclosure did not accurately reflect the terms of the Cardholder Agreement, which reserved the right to change the 6.99% rate for any reason at all.

1

Capital One first argues that its disclosure was literally true, because the 6.99% rate could change under any of the three events in the paragraph linked by asterisk to the Schumer Box. It relies on our decision in Hauk, which it interprets to reject the notion “that TILA prohibits ‘not only literal falsities, but also misleading statements.’ “ 552 F.3d at 1121 (quoting Rossman v. Fleet Bank (R.I.) N.A., 280 F.3d 384, 391 (3d Cir.2002)). We disagree with this reading of Hauk.

By parting ways from the “Third Circuit's expansive reading of Regulation Z,” id., Hauk did not condone misleading disclosures. It simply rejected the argument that TILA liability could be based on disclosures that were misleading about anything at all-what it called “ ‘misleading’ in the abstract.” Id. It did not hold that a creditor was allowed to mislead consumers about information that TILA specifically requires be disclosed. Hauk held that a creditor does not violate TILA merely by offering a promotional APR to a consumer who the creditor knows is ineligible for the promotional APR, as long as the conditions for imposing the higher nonpromotional APR are properly disclosed. An undeclared intent to impose the higher APR is not included in the information TILA and Regulation Z require to be disclosed. See id. at 1120-22.

By contrast, TILA and Regulation Z do require a Schumer Box to disclose credit card APRs. 15 U.S.C. § 1637©(1)(A)(i)(I); 12 C.F.R. § 226.5a(B)(1). This disclosure must be clear and conspicuous, 15 U .S.C. § 1632(a); 12 C.F.R. § 226.5(a)(1), which, for purposes of credit card solicitations, is defined in the official staff commentary to Regulation Z as “in a reasonably understandable form and readily noticeable to the consumer.” 12 C.F.R. pt. 226 supp. I, para. 5a(a)(2), cmt. 1; see also Barrer v. Chase Bank USA, N.A ., 566 F.3d 883, 887 & n. 4 (9th Cir.2009) (noting that the official staff commentary is owed deference). Thus, Regulation Z prohibits a Schumer Box from making “misleading” APR disclosures, where “misleading” means a disclosure that a reasonable consumer will either not understand or not readily notice. See Barrer, 566 F.3d at 892 (adopting “reasonable cardholder” standard). Put differently, an APR disclosure that is not “clear and conspicuous” is ipso facto “misleading.”

2

The Schumer Box and the paragraph linked to it by an asterisk described the APR as “fixed” and listed only three events under which the APR could increase. We conclude that Capital One cannot show that, as a matter of law, this disclosure is clear and conspicuous.

Share this post


Link to post
Share on other sites

a

Although clarity and conspicuousness is a question of law, see Barrer, 566 F.3d at 892; Rossman, 280 F.3d at 395, empirical evidence is helpful in determining what a reasonable consumer will understand and readily notice. Fortunately, evidence on how a reasonable consumer will understand the term “fixed rate” is available from the Federal Reserve Board of Governors, the very agency tasked with implementing TILA. The Board has relied on that evidence in promulgating a new regulation that generally prohibits creditors from using the term “fixed.” See United States v. Woods, 335 F.3d 993, 1001 (9th Cir.2003) (noting that under 44 U.S .C. § 1507, the Federal Register must be judicially noticed). Where such persuasive and directly relevant evidence is available, armchair empiricism is comparatively unhelpful in determining how a reasonable consumer will read a solicitation.

In 2006, the Board retained a research firm to conduct consumer testing and design improved credit card disclosures based on the results of the testing. See Macro Int'l Inc., Design and Testing of Effective Truth in Lending Disclosures 1 (2007), available at Credit Repair - Free Credit Reports and Credit Counseling to Increase Your Credit Score and Settle Your Debts. federalreserve.gov/dcca/regulationz/20070523/Execsummary.pdf. The firm prepared model credit card disclosures and conducted several rounds of interviews of credit cardholders. Those recruited to participate in the study were intended to represent the full range of demographic characteristics and financial experience in the cardholding public. Id. at 4, 17; see also id. app. A.

In the early rounds of interviews, the study found that “participants frequently assume that a rate that is labeled ‘fixed’ cannot be changed for any reason.” Id. at 33; see also id. at 10 (“When asked to define what a ‘fixed’ rate was, most participants said that it was a rate that would not change.”); id . at 30 (“When asked what it meant if a rate was labeled ‘fixed,’ most participants responded that these rates would not change for any reason.”). So pervasive was this assumption that the term “fixed” was “removed from models in later rounds.” Id. at 33.

Based on this research as well as later research by the same firm, the Federal Reserve Board promulgated revisions to Regulation Z that became effective July 1, 2010. See Truth in Lending, 74 Fed.Reg. 5244, 5246-48 (Jan. 29, 2009). Based on the research, the revisions specify that in the Schumer Box's APR disclosure,

the term fixed, or a similar term, may not be used to describe [the annual percentage] rate unless the creditor also specifies a time period that the rate will be fixed and the rate will not increase during that period, or if no such time period is provided, the rate will not increase while the plan is open.

Id. at 5401 (to be codified at 12 C.F.R. § 226.5(a)(2)(iii)). Under this regulation, a creditor may do what Capital One did-describe an APR as “fixed,” without specifying a period during which the APR will remain the same-only if the rate is unchangeable for the life of the card. In explaining the regulation, the Board categorized the term “fixed” as “[m]isleading” and stated that it had “found through consumer testing ․ that consumers generally believe a ‘fixed’ rate does not change․ [A]lthough creditors often use the term ‘fixed’ to describe an APR that is not tied to an index, consumers do not understand the term in this manner.”1 Id. at 5372-73 (cited by id. at 5272).

The new regulation did not become effective until after the events giving rise to this litigation, and thus does not bind us. The form of Regulation Z that governs this case, however, does prohibit disclosures that a reasonable consumer will not understand. 12 C.F.R. pt. 226 supp. I, para. 5a(a)(2), cmt. 1. The new regulation was adopted because the agency that implements TILA, relying on empirical evidence, concluded that describing an APR as “fixed” is misleading to reasonable consumers. What was misleading in 2006 and 2007, when the consumer studies were conducted, was also misleading in 2004, when Rubio received Capital One's solicitation. The new regulation and the empirical studies it relies on are therefore relevant and informative for this case. For “even where not binding,” an agency's interpretation of a statute “certainly may influence courts facing questions the agenc[y] ha already answered.” Tualatin Valley Builders Supply, Inc. v. United States, 522 F.3d 937, 941 (9th Cir.2008) (citation and quotation marks omitted).

Here, the Board has concluded that “fixed” is “generally” interpreted to mean that the rate will not be changed and that the creditor has not reserved the right to change it at a later date. 74 Fed.Reg. at 5373. We need not go so far as to decide how “fixed” is generally interpreted. But the Board's conclusion and the study on which it relies certainly persuade us that “fixed” can reasonably be interpreted to mean “unchangeable.” For that reason, it is not “clear and conspicuous” to describe an APR as “fixed” when the creditor has reserved the right to change the APR for any reason.

Our decision does not make the Board's new regulation retroactive. The Board promulgated its new regulation because, after surveying consumers, it concluded “fixed” was misleading. That is why the new regulation is relevant and helpful: TILA has always prohibited misleading APR disclosures. Our holding is simply a concrete application of that prohibition.

It is argued that this appeal should be remanded for factual development because “fixed” can also reasonably be interpreted to mean “not tied to an index.” See Concurrence and Dissent at 10409-10. But it is precisely because reasonable consumers can interpret an ambiguous disclosure in more than one way that such a disclosure cannot be clear and conspicuous. See, e.g., Lifanda v. Elmhurst Dodge, Inc., 237 F.3d 803, 808 (7th Cir.2001). Furthermore, because TILA is liberally construed in favor of the consumer and strictly enforced against the creditor, Jackson, 890 F.2d at 120, any misleading ambiguity-any disclosure that a reasonable person could read to mean something that is not accurate-“should be resolved in favor of the consumer.” Rossman, 280 F.3d at 394.

Share this post


Link to post
Share on other sites

As a final argument that the term “fixed” cannot be misleading, Capital One also relies on the official staff commentary to Regulation Z, which appears to use “fixed” to mean “not tied to an index” rather than “unchangeable.” See 12 C.F.R. pt. 226 supp. I, para. 5a(B)(1), cmt. 5. We find this contention unpersuasive. The staff commentary to Regulation Z is intended to guide regulated firms and the courts. See id. pt. 226 supp. I, intro. cmt. 1. There is nothing in the staff commentary to indicate that its internal use of “variable” and “fixed” defines how a reasonable consumer would interpret the words. As the Board has concluded, the best evidence on that question comes from the consumer studies indicating that many reasonable consumers do interpret the term “fixed” as “unchangeable.”

b

Capital One, however, argues that it cleared up any misunderstanding the term “fixed” may have produced by explicitly listing three conditions under which the APR could change and by adding the statement, “[m]y Agreement terms (for example, rates and fees) are subject to change.” We do not agree that this statement made Capital One's disclosure clear and conspicuous as a matter of law.

In the minds of a significant number of consumers, the term “fixed” means “unchangeable.” When reading Capital One's Schumer Box against that meaning, reasonable consumers could conclude that the APR was “unchangeable” except for the three exceptions. They could conclude that Capital One explicitly mentioned the three conditions precisely because they were the only reasons that the APR could change. Our analysis on this point comports with the Third Circuit's decision in Roberts v. Fleet Bank (R.I.), N.A., 342 F.3d 260, 266-67 (3d Cir.2003).

Unlike the three triggering conditions, the statement, “[m]y Agreement terms (for example, rates and fees) are subject to change,” was placed outside the Schumer Box and was not linked to it by asterisk. We assume for the sake of argument that in deciding whether a Schumer Box disclosure was clear and conspicuous, we can take into account statements outside the Schumer Box and not linked to it by an asterisk.2 Even under this assumption, Capital One's argument fails. There was nothing in the statement, “[m]y Agreement terms ․ are subject to change,” to indicate that the APR was “subject to change” for reasons other than the three reasons the Schumer Box discloses. A reasonable consumer, having concluded from reading the Schumer Box that the APR could change only for the three reasons expressly enumerated, could have interpreted the outside-the-Box statement to mean that the APR was “subject to change” exclusively for those three reasons. In so holding, we again follow the Third Circuit. Roberts, 342 F.3d at 268.

At issue in this case is not Capital One's “obligation to disclose the change-in-terms provision, but its obligation to disclose the APR” clearly and conspicuously. Id. at 267. Rubio has stated a TILA claim not because Capital One failed to disclose its unqualified right to change the terms of the Cardholder Agreement, but rather because Capital One has failed to show as a matter of law that it made its APR disclosure “in a reasonably understandable form and readily noticeable to the consumer.” 12 C.F .R. pt. 226 supp. I, para. 5a(a)(2), cmt. 1. We therefore reverse the district court's dismissal of Rubio's TILA claim.

III

Rubio alleges that Capital One's solicitation also violated the UCL, which prohibits “unfair competition,” defined as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof.Code § 17200 (West 2008). A business act or practice may violate the UCL if it is either “unlawful,” “unfair,” or “fraudulent.” Each of these three adjectives captures “a separate and distinct theory of liability.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir.2009) (citing S. Bay Chevrolet v. Gen. Motors Acceptance Corp., 85 Cal.Rptr.2d 301, 316 (Ct.App.1999)). According to Rubio, the solicitation she received violated the UCL under all of these theories of liability. Capital One responds that Rubio lacks standing to assert a UCL claim, and even if she had standing, her claim fails on its merits.

A

To assert a UCL claim, a private plaintiff needs to have “suffered injury in fact and ․ lost money or property as a result of the unfair competition.” Cal. Bus. & Prof.Code § 17204. This provision requires Rubio to show that she has lost “money or property” sufficient to constitute an “injury in fact” under Article III of the Constitution,3 see Birdsong v. Apple, Inc., 590 F.3d 955, 959-60 (9th Cir.2009), and also requires a “causal connection” between Capital One's alleged UCL violation and her injury in fact, Hall v. Time Inc., 70 Cal.Rptr.3d 466, 471-72 (Ct.App.2008).

Rubio has alleged a loss of money or property. When Capital One increased the APR from 6.99% to 15.9%, it gave Rubio a choice either to close the account and pay off the outstanding balance, or to keep the account open and accept the increased APR. Rubio does not allege which choice she accepted, though either would cause a loss of money or property. If she closed the account, she would have suffered a monetary loss by losing the credit that Capital One extended. White v. Trans Union, LLC, 462 F.Supp.2d 1079, 1084 (C.D.Cal.2006) (ruling that damage to credit was loss of money or property). If she kept her account open, she would have accepted a higher APR and thus also lost money. See Troyk v. Farmers Group, Inc., 90 Cal.Rptr.3d 589, 624-25 (Ct.App.2009) (holding that payment of extra money as a result of the defendant's action was sufficient for standing). This “actual economic injury” is enough to create standing under the UCL. Aron v. U-Haul Co. of Cal., 49 Cal.Rptr.3d 555, 559 (Ct.App.2006); cf. Birdsong, 590 F.3d at 961 (holding that hypothetical injury was insufficient for standing).

Share this post


Link to post
Share on other sites

Rubio has also alleged a causal connection between Capital One's solicitation and the Hobson's choice she faced. Because Rubio alleges that she entered into a credit card agreement with Capital One due to the solicitation's promise of a “fixed” APR, the choice she faced in August 2007, when she learned of the APR increase, was “a result of” Capital One's alleged UCL violation.

B

Rubio has standing to assert her UCL claim. We now consider the merits of the claim under the “unlawful,” “fraudulent,” and “unfair” prongs of the UCL.

By properly alleging a TILA violation, Rubio has also alleged a UCL violation under the prong of the UCL that prohibits “unlawful” business acts or practices. See Velazquez v. GMAC Mortgage Corp., 605 F.Supp.2d 1049, 1068 (C.D.Cal.2008); Troyk, 90 Cal.Rptr.3d at 614.

Rubio has also alleged a violation of the “fraudulent” prong of the UCL. As in TILA, this prong of the UCL is “governed by the reasonable consumer test”: a plaintiff may demonstrate a violation by “show[ing] that[reasonable] members of the public are likely to be deceived.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.2008) (citations and quotation marks omitted). This deception need not be intended. See In re Tobacco II Cases, 207 P.3d 20, 29 (Cal.2009). As we have explained above, a reasonable consumer was indeed likely to be deceived by Capital One's solicitation.

Finally, Rubio has stated a claim under UCL's “unfair” prong. California appellate courts disagree on how to define an “unfair” act or practice in the context of a UCL consumer action. See generally Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 735-36 (9th Cir.2007). Under the balancing test to which some courts adhere, Rubio may be able to prove facts showing that “the harm to the consumer” from Capital One's solicitation outweighed the solicitation's “utility.” Id. at 735. She may, for example, be able to show that removing the term “fixed,” an action that would have cost Capital One nothing, could have prevented consumer confusion. Under the alternative test, which requires a plaintiff to show that a practice violates public policy as declared by “specific constitutional, statutory or regulatory provisions,” Gregory v. Albertson's, Inc., 128 Cal.Rptr.2d 389, 395 (Ct.App.2002), Rubio has stated a claim by successfully alleging a TILA violation.

We therefore reverse the district court's dismissal of Rubio's UCL claim.

IV

The district court also dismissed Rubio's claim for breach of contract. She alleges that by stating that the credit card's APR was “fixed” at 6.99%, but later increasing the APR to 15.9%, Capital One breached its contract with her. Rubio's legal theory is that Capital One's solicitation was an offer and her application an acceptance.

Rubio has not stated a breach-of-contract claim. Under California law, which according to Rubio controls, a binding offer “is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. ” Donovan v. RRL Corp ., 27 P.3d 702, 709 (Cal.2001) (emphasis added, citation and quotation marks omitted). There is a binding offer only if it is reasonable to conclude, based on “all the surrounding circumstances,” that acceptance will leave nothing further to negotiate or do before the contract is effective. Id.

It would have been unreasonable to believe that Capital One's solicitation was a binding contractual offer. As the district court noted, the solicitation was generally described as an “invitation” or “application,” and it listed a number of contingencies under which her application could be rejected. The solicitation did include a heading entitled “TERMS OF OFFER,” but the language of that section made it clear that sending in the application, by itself, did not consummate the contract: “I hereby apply to Capital One Bank ․ for a credit card account․ I will receive the Capital One Customer Agreement and am bound by its terms and future revisions thereof.” In Lopez v. Charles Schwab & Co., the plaintiff had filled out an application form to open an account, which contained the similar statement, “I hereby request that [schwab] open a brokerage account․ I agree to read and be bound by the terms of the applicable Account Agreement.” 13 Cal.Rptr.3d 544, 549 (Ct.App.2004). The court of appeal concluded that “[t]his language ․ indicates Lopez did not expect that filling out the application would conclude her bargain with Schwab․” Id. The solicitation and application do not constitute an enforceable contract. The language in Capital One's solicitation is indistinguishable in all relevant aspects from the language in Lopez and did not constitute a binding offer.

Share this post


Link to post
Share on other sites

Rubio also argues that the Cardholder Agreement was unconscionable. Under California law, however, unconscionability is an affirmative defense, Dean Witter Reynolds, Inc. v. Superior Court, 259 Cal.Rptr. 789, 794 (Ct.App.1989), not a cause of action, Cal. Grocers a$$'n v. Bank of Am., 27 Cal.Rptr.2d 396, 403-04 (Ct.App.1994). Rubio as plaintiff cannot assert unconscionability as an independent claim for relief. We affirm the district court's dismissal of Rubio's claim for breach of contract.

V

We affirm the district court's dismissal of Rubio's breach-of-contract claim but reverse its dismissal of her claims under TILA and the UCL. We remand for further proceedings consistent with this opinion. The parties shall bear their own costs.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

I respectfully concur in part1 and dissent in part.

The district court dismissed this case on the pleadings, reasoning that the required disclosure sufficed as a matter of law. The majority holds that the disclosure is inadequate as a matter of law. In my view, the clarity of the disclosure should be considered an issue of fact for the trier of fact. While a finder of fact could conclude, as the majority does, that the disclosure was unclear, for the reasons explained below I think that a finder of fact also could conclude that the disclosure was clear.

Defendant Capital One Bank told Plaintiff Raquel Rubio that she could apply for a credit card at “a fixed rate of 6.99%.” Approximately three and a half years after Plaintiff obtained a Capital One credit card carrying the 6.99% rate, Defendant raised the annual percentage rate (“APR”) to 15.9%. Defendant increased the APR because market interest rates had risen, rather than because of any irregularities in Plaintiff's payments or her use of the account. Was there a clear and conspicuous disclosure of the potential for raising the APR, for the purposes of the Truth In Lending Act (“TILA”), when the solicitation advertised “a fixed rate of 6.99%” but stated on the same page that the rates and fees were “subject to change”? In my view, there was.

In 2004, Defendant mailed Plaintiff a solicitation to open a credit card account. The solicitation began:

YOU HAVE BEEN PRE-SELECTED FOR THIS OFFER FOR A CAPITAL ONE PLATINUM MASTERCARD FEATURING A LOW 6.99% FIXED APR ON BALANCE TRANSFERS AND PURCHASES, A CREDIT LINE UP TO $20,000* AND NO ANNUAL MEMBERSHIP FEE. THIS IS NOT AN INTRODUCTORY RATE!

The solicitation repeatedly referred to the 6.99% APR as “fixed.” The “Schumer box,” an informative table required by federal regulations, described the “ANNUAL PERCENTAGE RATE (APR) for purchases* ” as “A fixed rate of 6.99%.” The asterisk directed the reader lower on the page, where the solicitation stated:

*All your Annual Percentage Rates (APRs) are subject to increase if any of the following conditions (“Conditions”) occur: (i) you fail to make a payment to us when due; (ii) your account is overlimit; (iii) or your payment is returned for any reason. All APRs will change with the beginning of the billing period after the period in which the condition occurred. The first time any of the Conditions occur, your purchase and special transfer APRs (if applicable) may be increased to a rate of 12.9% ANNUAL PERCENTAGE RATE (0.03534% daily periodic rate). If any of the Conditions occur twice within any 6-month period, all of your APRs may be increased to a rate of 25.9% ANNUAL PERCENTAGE RATE (0.07096% daily periodic rate).

Farther down on the same page, the “TERMS OF OFFER” included this provision: “I will receive the Capital One Customer Agreement and am bound by its terms and future revisions thereof. My Agreement terms (for example, rates and fees) are subject to change.”

Plaintiff responded to the credit card solicitation and, in March 2004, she received a cardholder agreement from Defendant. The agreement similarly provided that Defendant reserved the right to “amend or change any part of your Agreement, including periodic rates and other charges, or add or remove requirements ․ at any time.” In August 2007, Defendant mailed Plaintiff a notification that the APR on her credit card was about to increase to 15.9% unless she halted her use of the card and made no further charges on it. The notice explained the change in the future lending rate as simply a response to changing market interest rates. “In light of rising interest rates over the past few years and the rate currently applied to your account balance, the APRs on your account are about to increase.”

We have construed TILA and Regulation Z to prohibit disclosures that are either inconspicuous or opaque to a reasonable consumer. “Clear and conspicuous disclosures ․ are disclosures that a reasonable cardholder would notice and understand.” Barrer v. Chase Bank USA, N.A., 566 F.3d 883, 892 (9th Cir.2009) (emphasis added). Our inquiry is not whether additional disclosure would be useful to consumers but, rather, whether the disclosures that were made complied with the requirements of TILA and Regulation Z. Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1121 (9th Cir.2009).

In other words, here, is the disclosure accurate and clear?2 In my view, a reasonable trier of fact could find that it is. The term “fixed” accurately describes an interest rate that is not linked to an external index and is not designed to expire or reset automatically at any particular point in time. The commentary to Regulation Z distinguishes between a “fixed-rate account” and a “variable-rate account.” See 12 C.F.R. pt. 226 supp. I, para. 5a(B)(1), cmt. 5 (contrasting disclosures required for the different types of accounts). A “variable-rate account” is one in which “rate changes are part of the plan and are tied to an index or formula.” Id. at cmt. 2. By implication, then, a fixed-rate account is one that does not share those characteristics. The account advertised by Defendant here did not feature rate changes tied to an index or formula as a part of the credit plan. That is, it was a fixed-rate account. The disclosure was accurate in describing the rate as “fixed.”

Nor did Defendant's general reservation of rights-the provision stating that rates and fees were subject to change-transform the accurate term “fixed” into an inaccurate disclosure. 12 C.F.R. pt. 226, supp. I, para. 6(a)(2), cmt. 2. The account still did not involve pre-planned rate changes, even if Defendant retained the right to adjust the rate later in response to general market conditions.3 The disclosure was accurate.

The crux of this dispute, then, is the clarity of the disclosure. Would a reasonable consumer understand that Defendant may alter the “fixed” APR because market conditions change? In my view, this should be a question of fact. Moreover, I conclude that a fact-finder reasonably could find that the answer to the question is “yes” because, on the same page as the statement of the 6.99% fixed rate, the solicitation informed the consumer that “Agreement terms (for example, rates and fees) are subject to change.” That is to say, a factfinder permissibly could find that a reasonable consumer would understand from the disclosure here that the “fixed” APR might go up or down in the future.

Share this post


Link to post
Share on other sites

An average consumer might well understand that a “fixed” rate on a credit card does not mean that the rate is “permanent” or “forever” when the issuer expressly and simultaneously reserves its right to “change” its “rates” later. Reasonable consumers know that interest rates fluctuate-sometimes dramatically-over time; no reasonable consumer expects that short-term borrowing rates will remain static forever. Reasonable consumers might well understand that, as market conditions change, the APR available from a credit card company that has explicitly reserved its right to adjust rates prospectively may change as well.4

Plaintiff contends that a reasonable consumer, even if aware that the fixed rate was not guaranteed permanently, would be confused by the solicitation's list of three conditions that would trigger a higher APR. Plaintiff argues that the customer reasonably might think that those three conditions are the only ones that permit a rate increase. A reasonable trier of fact could find this argument unpersuasive.

First, the statement that the APR is “subject to change if any of the following conditions (‘Conditions') occur” notably lacks a qualifying term such as “only,” “exclusively,” or “solely.” An average consumer might well understand the difference between saying that her rate will increase if she misses a payment and saying that her rate will increase only if she misses a payment.

But more importantly, a reasonable consumer would not necessarily believe that a “fixed APR” on a credit card whose issuer has reserved its right to change rates is a promise to keep the same interest rate forever so long as the cardholder behaves well. The warning that specific undesirable acts by the cardholder will lead to a higher interest rate does not necessarily suggest that the account will otherwise be shielded from global economic conditions .

What, then, should the result be when the majority's proposed understanding of the disclosure's clarity is not the only reasonable understanding? In my view, the better answer to that question is to remand the case for fact-finding.

There seems to be a circuit split regarding the question whether the clarity of a disclosure is a question of law or fact. The Seventh Circuit holds that this is a question of law. Hamm v. Ameriquest Mortgage Co., 506 F.3d 525, 529 (7th Cir.2007).5 By contrast, the Third Circuit, in a case on which the majority relies heavily in other respects, appears to treat the clarity of a disclosure as a question of fact.6

In Roberts v. Fleet Bank (R.I.) National a$$'n, 342 F.3d 260, 263 (3d Cir.2003), a consumer received a solicitation advertising a “7.99% Fixed APR,” which stated that the APR was “NOT an introductory rate” and that “t won't go up in just a few short months.” There, the issuer raised the cardholder's rate after 13 months. Id. at 264. As in this case, the Roberts solicitation listed two specific circumstances in which the fixed rate would increase-failure to meet payment requirements and closure of the account-and neither of those events had occurred. Id. at 263-64.

In Roberts, the Third Circuit “recognize[d] that a fixed rate is not necessarily permanent.” Id. at 268 n. 3. But it held that the solicitation could lead a reasonable consumer to be “confused about the temporal quality of the offer” and to conclude that rates “are subject to change only for the two reasons outlined.” Id. at 268. As a result, the court held “that a question of fact exists as to whether Fleet made any misleading statements in the mailing” and whether it failed to disclose information clearly, as TILA requires. Id. at 269 (emphasis added).

The majority's reliance on evidence outside the pleadings underscores the appropriateness of fact-finding in a case such as this. The majority relies on the results of research done two years after Defendant sent the solicitation at issue here. The evidence on which the majority relies consists of an executive summary of three rounds of interviews with a total of 25 individuals who were shown mock credit card solicitations. See Macro Int'l Inc., Design and Testing of Effective Truth in Lending Disclosures, app. A, tbl. 1 (2007), available at http://www.federalreserve.gov/dcca/regulationz/0523/summary.pdf [hereinafter Executive Summary] (showing that researchers interviewed nine consumers in Baltimore, nine in Kansas City, and seven in Denver). This small sample of consumers was not intended to be-and was not-representative of the card-holding public, even though the majority is correct that it was intended to represent the range of those consumers.7 Id. at 17, app. A. The executive summary does not reveal how many of the consumers in two rounds of the interviews misinterpreted the term “fixed” as used in the experimental solicitations. Compare id. at 22 (stating that six participants in Kansas City misunderstood the term), with id. at 10, 30 (stating that “most participants” in Baltimore and in Denver misunderstood the term). Thus, the majority accepts what may be as few as 15 unrepresentative consumers as “persuasive.” Maj. op. at 10395. I am dubious of that assessment.8

Furthermore, I am concerned by such heavy reliance on evidence that has bypassed the adversarial process. No party mentioned this research in briefing or at oral argument. Consequently, we are entirely ignorant of whether there are other flaws in the study that Defendant might bring to our attention if it had the opportunity to do so. Nor do we know if other research has yielded countervailing results.

Nothing in the former regulations suggested that the agency deemed the term “fixed” to be misleading. The researchers initially included it in their experimental solicitations, and none of the “key research questions” listed in the executive summary suggests that these experts suspected that the term would be misunderstood. Executive Summary at 2-3. In fact, even the researchers seem to have been surprised by their results regarding the term: they were slower to remove the term from subsequent rounds of interviews than they were to act on some of their other findings. The researchers continued to use the term “fixed” for three rounds of interviews, id. at iii, while they made several other changes to the experimental solicitations after the first and second rounds of interviews, id. at 14, 26-27.

Share this post


Link to post
Share on other sites

In summary, a reasonable trier of fact could find that Defendant's solicitation accurately, conspicuously, and clearly disclosed the terms of its credit card account. What happens in an insurance bad-faith case (to take just one example) when the pleadings (or summary judgment documents) allow a reasonable trier of fact to find either bad faith or good faith denial of coverage? The case proceeds to trial. The same is true for unfair trade practices, medical negligence, punitive damages, and nearly every other kind of claim-that is, whether or not the claim is statutory, and whether or not it involves assessing someone's state of mind.

In most areas of law, then, when reasonable minds can differ about a factual conclusion, an appellate court does not substitute itself for a finder of fact. I would apply the usual rule to the question of clarity of a TILA disclosure. I would, therefore, hold that the pleading is sufficient to state a claim but that issues of fact remain for resolution on remand.

FOOTNOTES

1. In explaining why its new regulation generally prohibits the word “fixed” in a Schumer Box, the Board refers the reader to its “decision with respect to use of the term ‘fixed’ ․ in an advertisement.” 74 Fed.Reg. at 5272. That decision restricts the use of “fixed” in an advertisement, classifying it as a “misleading term.” See id. at 5372.The “index” the Board refers to in its new regulation is a publicly available measure of the cost of funds (for example, the federal funds rate). See Consumers Union of U.S., Inc. v. Fed. Reserve Bd., 938 F.2d 266, 267-68 (D.C.Cir.1991).

2. TILA and Regulation Z do not merely require that a solicitation disclose each APR that may be used to compute a credit card's finance charge. See 15 U.S.C. § 1637©(1)(A)(i); 12 C.F.R. § 226.5a(B)(1). They also require that this disclosure be “in the form of a table,” that is, disclosed by means of the Schumer Box. 15 U.S.C. § 1632©(2)(A); 12 C.F.R. § 226.5a(a)(2)(i). Allowing disclosures made outside the Box to cure a Schumer Box's unclear or inconspicuous APR disclosure would seem to allow creditors to evade the tabular requirement.

3. Standing under the UCL requires a particular kind of injury in fact-loss of “money or property.” See Troyk v. Farmers Group, Inc., 90 Cal.Rptr.3d 589, 625 n. 31 (Ct.App.2009). By contrast, Rubio has standing to bring her TILA claim simply because she “suffered the loss of a statutory right to disclosure.” DeMando v. Morris, 206 F.3d 1300, 1303 (9th Cir.2000).

1. I agree with the majority that the solicitation did not constitute an offer. Plaintiff argues that California law governs the parties' agreement. But even under California law, “[a]n offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Donovan v. RRL Corp., 27 P.3d 702, 709 (Cal.2001) (emphasis added) (internal quotation marks omitted). Here, the solicitation made it clear that sending in the application did not, by itself, consummate the agreement. The solicitation listed a number of contingencies under which Plaintiff's application could be rejected. See Lopez v. Charles Schwab & Co., 13 Cal.Rptr.3d 544 (Ct.App.2004) (holding that an application containing the statement, “I hereby request that [the defendant] open a brokerage account,” did not create an enforceable contract).In addition, because I too would hold that Plaintiff has stated a TILA claim-although I would decline to hold that the disclosure is clear as a matter of law-I agree with the majority that the district court erred by dismissing the California unfair competition claim.

2. Plaintiff's brief does not argue that the disclosure is inconspicuous. In Barrer, we held that a disclosure was not conspicuous when “the change-in-terms provision appear[ed] ․ five dense pages after the disclosure of the APR” and was “neither referenced in nor clearly related to the ‘Finance Terms' section.” 566 F.3d at 892. Here, the APR disclosure and the general reservation of rights appear on the same page, in a legible font. A reasonable consumer would have noticed them; they are conspicuous.

3. The general reservation clause was permissible and need not have explained that Defendant might change the APR if market conditions changed. The commentary to Regulation Z anticipates that credit agreements may contain a general reservation clause. 12 C.F.R. pt. 226, supp. I, para. 6(a)(2), cmt. 2. And adequate disclosure under Regulation Z does not require that creditors must “specify the general circumstances under which they anticipate[ ] changing terms.” Barrer, 566 F.3d at 891 n. 9.

4. Indeed, when Defendant formerly sought to entice customers to open an account with precisely that “forever” feature, it described the credit in very different terms. Fifteen years ago, Defendant advertised a card with a “Lifetime APR” and told consumers that they would “receive a low fixed APR of 10.9%-for life!” DeMando v. Morris, 206 F.3d 1300, 1301-02 (9th Cir.2000) (emphasis omitted). The solicitation trumpeted: “You will keep this low fixed rate as long as your account remains in good standing․ [Y]ou will never have to shop for another credit card again!” Id. at 1302. By contrast, the solicitation at issue here lacks any reference to keeping the advertised interest rate “for life” or for the consumer's “lifetime,” nor does it promise that the rate will stay the same “as long as” the account remains in good standing.

5. Although we have held that conspicuousness of a TILA disclosure is a question of law, Am. Gen. Fin., Inc. v. Bassett (In re Bassett), 285 F.3d 882, 885 (9th Cir.2002), we have not addressed how to treat the clarity of a disclosure. The reasons why we treat conspicuousness as a question of law do not compel us to treat clarity similarly. In In re Bassett, we borrowed the definition of conspicuousness from the Uniform Commercial Code (“UCC”). Id . at 884. The UCC expressly provides that conspicuousness is a decision for the court. U.C.C. § 1-201(B)(10). I am aware of no comparable UCC provision regarding clarity. We also explained in In re Bassett that “subjecting conspicuousness to fact-finding would introduce too much uncertainty into the drafting process.” 285 F.3d at 885. Whether or not it is actually true that a court's determination regarding conspicuousness is more predictable than a fact-finder's, it is manifestly not true with respect to clarity. The assessment of a reasonable consumer's understanding of a disclosure would be more accurate-and hence more predictable-if made by an informed fact-finder than if made by a court in the abstract.

6. In Rossman v. Fleet Bank (R.I.) National a$$'n, 280 F.3d 384, 394-95 (3d Cir.2002), the Third Circuit implicitly treated the accuracy of a disclosure as a question of law. But the court did not discuss that issue, and it is not clear whether the court held that the disclosure was inaccurate because, in that record, no issue of fact existed or, instead, because the issue is always one of law.

7. A representative sample is one in which the frequency or distribution of some trait corresponds to that trait's frequency or distribution in the population being sampled. See McGraw-Hill Dictionary of Scientific and Technical Terms 1789 (6th ed.2002) (defining “representative sample” as “[a] sample whose characteristics reflect those of the population from which it is drawn”). To illustrate the distinction, consider that a representative sample of college students would contain primarily individuals between 18 and 30 years of age, because most college students are young adults. By contrast, a sample that represented the range of college students might be made up of a precocious fourteen-year-old, a conventional nineteen-year-old, and an energetic senior citizen. Research on the former, representative sample would predict more accurately the behavior of college students because fourteen-year-olds and senior citizens are relatively uncommon among college students.

8. My discomfort is not assuaged by the fact that the Federal Reserve Board of Governors later cited this research to justify regulating use of the term “fixed.” 74 Fed.Reg. 5244, 5272, 5372-73 (Jan. 29, 2009). The evidence that underlies a minor prospective change need not always be as persuasive as that required to hold a credit card company liable for its past actions.

B. FLETCHER, Circuit Judge:

Share this post


Link to post
Share on other sites

DISTRICT COURT OF YOUR COUNTY KANSAS

YOUR BANK
PLAINTIFF

VS

JOW BLOW
DEFENDANT

MOTION TO STRIKE AFFIDAVIT IN SUPPORT OF PLAINTIFFS CLAIM

Comes now,Defendant Joe Blow,pursuant to K.S.A. Statute 60-212(f) and respectfully states the following:
1.Contingent upon granting Defendant’s Motion to Strike Affidavit, Defendant respectfully moves pursuant to the Kansas Rules Of Civil Procedure, Requirement of Authentication or Identification:60-460 (m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.

If the procedure specified by subsection (B) of K.S.A. 60-245a for providing business records has been complied with and no party has required the personal attendance of a custodian of the records or the production of the original records, the affidavit of the custodian shall be prima facie evidence that the records satisfy the requirements of this subsection.

 

60-462: Credibility of declarant. Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to K.S.A. 60-460, is admissible for the purpose of discrediting the declarant, though he or she had no opportunity to deny or explain such inconsistent statement. Any other evidence tending to impair or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness.

History: L. 1963, ch. 303, 60-462; Jan. 1, 1964.

 



(a) General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.


Plaintiff can prove no set of facts nor evidence supporting a claim entitling Plaintiff to relief and that the case be dismissed with prejudice.

Memorandum


Defendant respectfully submits this motion to strike Plaintiff’s affidavit for the Court’s consideration. The following facts are significant to this motion.


Facts

1. As alleged in Plaintiff’s Complaint and the attached affidavit of Plaintiff’s representative, Defendant owes Plaintiff a sum certain due an alleged debt.

2. Plaintiff failed to attach a copy of the written instrument as an exhibit to the Complaint and failed to recite relevant information.

In the case of Sollami v. Eaton, 2002 Ill. Lexis 331, Docket Nos. 91284, 91378, it states:

"The court also reviewed the requirement that the affidavit attach sworn or certified copies of records upon which the affiant relied. Plaintiff argued that this requirement was merely technical. But the court disagreed.   "This requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself . We are unwilling to allow the simple production of an expert’s conclusion ‘to become a free pass to trial.’" In this case, striking plaintiff’s expert affidavit was upheld because of the failure to attach the pertinent records. Plaintiff thus had no expert affidavit."

3. Although Plaintiff claims to “have access to records pertaining to the account”, Plaintiff has not attached those records and has attached an affidavit by <name of affiant> in lieu of a written instrument or any records pertaining to the account.”

4. On information and belief, the affiant, <name of affiant>, was never employed by the original creditor.

5. On information and belief, the affiant, <name of affiant>, was never in a fiduciary or any other position to examine the original creditor’s open books for the account of the alleged debt .

6. On information and belief, the affiant, <name of affiant>, does not have personal knowledge of the original creditor’s creation, maintenance, issuance, and tracking of the billing or statements.

7. Plaintiff claims to be assignee to the alleged debt but has failed to provide proof of the matter.

Analysis

Although Plaintiff claims to have access to “records” pertaining to Defendant’s alleged debt, Plaintiff refused to comply with Kansas rules of civil procedure which states:

Pleading written instrument. Whenever a claim, defense or counterclaim is founded upon a written instrument, the same may be pleaded by reasonably identifying the same and stating the substance thereof or it may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit. K.S.A.60-209(H).

The attached affidavit does not suffice for a written instrument and Plaintiff’s affidavit constitutes heresay and is not admissible under KANSAS Rules of Evidence.


Conclusion

Kansas Rules of Civil Procedure requires a copy of a written instrument be attached to the Complaint when it is the basis of the Plaintiff’s claim. When not attached, a valid reason for its omission must be given. Plaintiff’s claim that it has access to Defendant’s records when it does not may constitute a “misrepresentation” and as such, evidence of further violations of the Fair Debt Collection Practices Act.

Plaintiff’s Complaint alleges that Defendant is in default under the terms and conditions of an alleged written instrument, but fails to disclose the terms and conditions under which Plaintiff acquired said instrument.

Plaintiff alleges that this written instrument forms the basis for Plaintiff’s right to sue and demand judgment against Defendant.

The written instrument is the best evidence of any transactions that allegedly occurred between Defendant and Plaintiff or Defendant and another creditor. Without the written instrument, Plaintiff cannot prove what terms and conditions Defendant allegedly defaulted on.

WHEREFORE Defendant prays that this Court find judgment for Defendant and grant the MOTION TO STRIKE AFFIDAVIT IN SUPPORT OF PLAINTIFFS CLAIM,Defendant further prays that this Court hold that Defendant is the prevailing party,to dismiss this case with prejudice,and prays that the plaintiff take naught buy its answer.

Respectfully submitted,

X__________________

CERTIFCATE OF SERVICE
I Certify that i mailed/delivered a copy of this answer to the Shawnee County District Court/
Plaintiff joe lawyer
1111 big blvd
Topeka Ks 66600

MY NAME:
MY ADDRESS:
MY CITY:
MY STATE:
MY PHONE:
TODAYS DATE
Respectfully submitted,
YOUR NAME



THIS IS FOR MY USE ONLY

Edited by racecar

Share this post


Link to post
Share on other sites

--------------------------------------------------------------------------------

1.Do your research effectively.

2.Always begin with an introduction.

3.When describing the parties,dont be afraid to include a few relevant details.

4.Organize your facts so they are easy to understand.

5.Make your factual allegations as detailed as possible.

6.Use short sentences and paragraphs.

7.Avoid adjectives and subjective words.

8.Use frequent argumentative headings,both in the facts and in the causes of action.

9.Be specific about the relief you are seeking.

10.Avoid legal jargon,affirmative defenses you dont understand.

11.If permitted,attach a few relevant documents to your complaint or your answer to complaint.

12.Think of the consequences if the judge converts a dismissal motion into one for summary judgment.

13.Write your answers to get your case going in the right direction.Your answer is your opening shot make it count.

My posts are for my use only!!!!

Edited by racecar

Share this post


Link to post
Share on other sites

Courts have held that pro se litigants should be held “to less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 520 (1971), “pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials.” Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994).

My posts are for my use only

Edited by racecar

Share this post


Link to post
Share on other sites

1). NEVER admit to any thing !!.

The Constitution of the United States of America places the burden of proof on the claimant ( Plaintiff ).The Constitution, further, protects any one against self incrimination. that's why many lawyers advice their clients to take advantage of the Constitutional protection, by claiming the 5th.

You are NOT in Court to prove your innocence, as that is a Constitutional RIGHT !!. Rather, you should uphold the Plaintiff to the obligation of proving your guilt !!. Do NOT be apologetic about not admitting to any thing. It is your RIGHT NOT to self incriminate, and it is you RIGHT to challenge the claims of a claimant, and to force the Plaintiff to prove your guilt.

Many people admit to owing money, hence give the upper hand to the Plaintiff, when they should NOT. Let the Plaintiff earn it. Make no mistake that the Plaintiff is after your money, and will try to get a Judgement against you, at any cost. Let the Plaintiff earn it. There is nothing immoral about NOT admitting your guilt, as you are protected against self incrimination by the Constitution !!.

One thing should be crystal clear in your mind : You are in Court to uphold the Plaintiff to the Constitutional obligation of proving your guilt, and that you are NOT there to prove your innocence.

Your stand should be: " I absolutely dispute your claim of indebtedness, in its entirety .I do NOT recall owing you any thing, nor recall signing or appropriating any benefit from you".

You are NOT denying, but rather NOT recalling, and you are NOT committing a crime by NOT recalling you owe any thing. The objective here is to FORCE the Plaintiff to validate and prove your guilt. They detest that, as proving someone's guilt is expensive and takes time and effort, which they hate and less likely pursue a debtor who is defiant.

2). When answering the Summons, your response should be; "I dispute the claim of the Plaintiff in its entirety !! ".

By disputing the claim of indebtedness in its entirety, you are forcing the Plaintiff to live up to his/her Constitutional obligation to prove your guilt.

Do not give the Plaintiff any freebie .Let the Plaintiff earn it and satisfy the burden of proof, chances are the Plaintiff will fail to satisfy that burden of proof. Most of the Plaintiffs win because of the fact that a Debtor has admitted to his/her guilt !!!.

If asked what is it that you are disputing?. Tell them: You are disputing the followings:

a). The existence of a contractual obligation to pay.

B). The RIGHT of the Plaintiff or its assignee to bring lawsuit against you.

c). The amount allegedly owed.

d). The RIGHT of the Plaintiff to collect on the alleged debt.

e). The transferability of the alleged original contract

My posts are for my use only

Share this post


Link to post
Share on other sites

To:Creditors Name

Address:

Acct: #- XXXXXXXXXXX

From: my name

my address

To Whom It May Concern:This letter is being sent to you in response to a notice sent to me on March 12th, 2012. The alleged account and debt are disputed in their entirety. Validation is requested.All telephone calls to me are inconvenient. Please only communicate with me by US Mail only.

My posts are for my use only!!!!

Edited by racecar

Share this post


Link to post
Share on other sites

http://www.ftc.gov/os/comments/debtcollectroundtable2/091119outline.pdf

http://www.lexisnexis.com/lawschool/study/texts/pdf/PUB_3126CommercialArbitration.pdf

http://www.lexisnexis.com/lawschool/study/outlines/pdf/contracts.pdf

http://ftc.gov/os/comments/debtcollectroundtable3/545921-00017.pdf

assignee of debt vs. debt purchaser - Lawyers.com Community

http://www.masslegalservices.org/system/files/Substantive_Defenses_to_Consumer_Debt_Collection_Suits_t.pdf

Florida Bankruptcy and Divorce Lawyers - Cleaveland & Cleaveland, P.L., Jacksonville, Florida and Orlando, Florida - Debt Defense

http://www.law.gonzaga.edu/academic-program/Files/cle/Folder/Jarzombek_Defending_Debt_Collection_Suits.pdf

http://www.edcombs.com/CM/Special/collection%20defense%20feb%202010.pdf

http://www.edcombs.com/CM/Special/collectiondefense.4-2008.pdf

http://www.edcombs.com/CM/News/collection%20defense%20debt%20buyer.pdf

Common Defenses to Creditor Lawsuits | Lawsuit Defense

http://www.nlada100years.org/sites/default/files/Defending%20Junk%20Debt%20Cases.pdf

http://www.ncatl.org/file_depot/0-10000000/0-10000/9208/folder/91325/Defending+Consumers+In+Debt+Collection+Cases-Manuscript-UPDATED.pdf

http://www.civiljusticenetwork.org/LinkClick.aspx?fileticket=97md-8krQFQ%3D&tabid=68

More Consumer Information

Debt Relief Info | Defending Against Credit Card Companies | Charleston Bankruptcy Attorney

https://www.palegalaid.net/sites/default/files/Defending_Debt_Collection_Suits_KS_edited.pdf

http://www.nedap.org/pressroom/documents/DEBT_DECEPTION_FINAL_WEB.pdf

http://warybuyer.com/wp-content/uploads/2011/10/How-To-Defend-a-Credit-Card-Case.pdf

http://www.luc.edu/law/activities/publications/clr_vol22_issue2/pdf/emery_credit_card.pdf

Being Sued by a Credit Card Company or Collection Agency? How to defend yourself against a credit card lawsuit.

https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-681.aspx

http://www.nytimes.com/2010/11/01/business/01debt.html?pagewanted=all

Debt Buyer Lawsuits, Texas

Midland Funding's Robo-Signing Illegal, MN AG Alleges | FDCPA - Fair Debt Collection Practices Act

Midland Funding LLC Sued for Alleged Robo-signed Affidavits

U.S., Banks Near 'Robo-Signing' Settlement - WSJ.com

Edited by racecar

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this