Restivo v. Continental Airlines, Inc. (Cuyahoga Cty.), 2011-Ohio-219, PIF 2950
Plaintiffs purchased a gift card from Continental Airlines which had a one year expiration date. When they unsuccessfully attempted to use the gift card after the expiration date, they filed suit, alleging violations of the CSPA and Ohio's Gift Card Statute. The Court of Appeals upheld the trial court's dismissal of the complaint, finding that application of the CSPA and the Gift Card Statute to an airline was preempted by the Airline Deregulation Act.
Milner v. Biggs, SD Ohio Case No. 10-CV-904, PIF 2952
Plaintiffs claimed that Defendant Arrow Title violated the CSPA while performing closing services in connection with the purchase of real estate. The Court found that the CSPA did not apply, as services collateral to the sale of real estate were exempt.
FAILURE TO DELIVER
State ex rel DeWine v. NSA Technologies, LLC, Summit Cty. Case No. CV-2010-09-6290, PIF 2941
Defendants were in the business of offering work at home programs, self-employment guides, job placement, and other employment opportunities to consumers. Consumers purchased these services from Defendants, and Defendants failed to deliver the goods and services purchased and refused to refund the amounts paid to them when requested by consumers. It is a violation of the CSPA for a supplier to: 1) accept money from consumers for goods or services and then allow eight weeks to elapse without making delivery of the goods or services purchased, making a full refund, or furnishing similar goods or services of equal or greater value; 2) represent to consumers that a product or service has performance characteristics or benefits that it does not have, including but not limited to, false statements of guaranteed employment upon purchase of goods or services; and 3) make deceptive statements, testimonials, and offers in printed advertisements to mislead consumers in the purchase of goods or services including work at home programs, self-employment guides, and other employment opportunities and/or materials, including printing false testimonials, promising immediate placement in a paying position, and overstating the number of individuals they have helped find legitimate work at home jobs in printed advertisements. It is an unconscionable act in violation of the CSPA to make statements in printed materials for the purpose of deterring consumers from asserting basic rights held by all consumers in the State of Ohio and by issuing a printed flyer that contains deceptive, misleading, and/or unconscionable statements. Defendants ordered to pay $35,950.12 in consumer restitution, $50,000.00 in civil penalties ($30,000.00 suspended), and $5,000.00 in investigative costs.
Mason v. Ohio Valley Exteriors, LLC, Franklin Cty. Case No. 10CVH-09-12961, PIF 2942
Defendants violated the CSPA by entering into a home improvement contract and accepting deposits from the Plaintiffs and then failing to deliver the goods or services and failing to refund Plaintiffs' down payments, continually stalling and evading Defendants' legal obligations to Plaintiffs, and making false and misleading statements in connection with a consumer contract. Plaintiffs awarded treble damages of $20,844.00.
In re The Serenity Group of Ohio, AVC No. 424073, PIF 2943
Suppliers operated two cemeteries in Ohio and entered into contracts with consumers to provide funeral and burial goods and services, including grave markers. Suppliers were not properly registered with the Ohio Department of Commerce, Division of Real Estate and Professional Licensing as a cemetery company. Suppliers accepted substantial down payments from consumers for the purchase of goods and services, specifically grave markers, and failed to deliver the purchased goods or services. Suppliers agree to properly register with the Ohio Secretary of State's Office and with the Ohio Department of Commerce. Suppliers agree to refrain from accepting down payments from consumers for funeral and burial at need and pre-need goods or services and then failing to provide those goods or services or allowing more than eight weeks to elapse without delivering the goods or services or making a full refund of the down payments. Suppliers to pay $12,145.27 in consumer restitution or, in the alternative, fully deliver the goods or services ordered by consumers within 90 days of the Execution Date of the AVC. Suppliers agree to pay $25,000.00 in attorney fees and costs (suspended).
In re Express Towing & Recovery Service, Inc., AVC No. 413646, PIF 2944
Suppliers were engaged in the business of transporting motor vehicles and of acting as a broker for such service between consumers and third party motor vehicle transporters. Consumers paid Suppliers for vehicle transport services, and Suppliers allowed more than eight weeks to elapse without delivering the services paid for, or making full refunds of the payments made by consumers, or advising consumers of the duration of an extended delay and offering a full refund within two weeks if requested by the consumer, or furnishing similar services of equal or greater value as a good faith substitute. Suppliers promised consumers that they would promptly pick up or transfer their motor vehicles even though Suppliers had not secured a transporter to make such transport. Suppliers failed to make refunds after consumers had cancelled their orders. Express Towing & Recovery Service, Inc. agrees to permanently cease engaging in the business of transporting motor vehicles. Mark Broteke agrees to cease engaging in the business of transporting motor vehicles for a period of five years. Suppliers to pay $7,455.00 in consumer restitution and $10,000.00 in attorney fees and investigative costs (suspended).
FAIR DEBT COLLECTION PRACTICES ACT
Tinnon v. Wooten, Cuyahoga Cty. Case No. CV-09-706429, PIF 2953
The court found that Defendants had committed numerous violations of the FDCPA and the CSPA, as set forth in Plaintiff's complaint. The Court awarded Plaintiff $3,800.00 in damages, plus interest, costs, and attorney fees.
Zomkowski v. Messer, Lucas Cty. M.Ct. Case No. CVF 10-17036, PIF 2945
Plaintiff entered into a contract with Defendant to replace sixteen windows in her home. The Court found that the transaction was a home solicitation sale covered by HSSA, and that Defendant had failed to provide the Plaintiff with notice of her right to cancel the contract as required by R.C. 1345.23(A) and (B). The Court also found that the Defendant had failed to complete the work that was started and failed to provide a refund of the monies that had been paid, in violation of the CSPA. Plaintiff granted judgment of $5,875.00.
J&D Rack Company, Inc. v. Kreimer (Hamilton Cty.), 2011-Ohio-2358, PIF 2947
Defendants contracted with Plaintiff to perform excavation work to expand a lake on their property and agreed to pay up to $40,000 for the work. One month later, Plaintiff informed Defendants that the company expected $67,000 for the work performed up to that point. Defendants ultimately paid another company to complete the project. The Court of Appeals held that the contract between the parties was subject to the CSPA, as it was for improvements to the land, not for the purchase, and the use of the land and improvements was primarily for personal, family, or household purposes. The Court of Appeals affirmed the trial court's ruling on damages, which ordered the Defendants to pay the Plaintiff the difference between the maximum contract price of $40,000 and their ultimate cost to complete the project in order to put the Plaintiffs in their expected position under the contract. The trial court also awarded Defendants damages and attorney fees of $26,675. The Court of Appeals upheld the attorney fee award, finding that the trial court had specifically found that the paralegal expenses incurred were unrelated to the CSPA claims and were properly excluded from the award of attorney fees.
State ex rel DeWine v. Wiehoff, Franklin Cty. Case No. 10 CVH 05 6969, PIF 2951
Defendant operated a concrete company, installing custom concrete on the exterior of consumers' homes. Defendant violated the CSPA by: 1) accepting down payments from consumers for goods and services and failing to provide those goods and services within 8 weeks of the contract date, 2) accepting down payments for goods and services and failing to refund the down payments for work that was not performed, 3) performing home improvement services in a shoddy, substandard, and unworkmanlike manner, and 4) representing that C&W Concrete had a sponsorship, approval, or affiliation that it did not have; specifically, that C&W Concrete was a member of the BBB. Defendant ordered to pay $16,391.20 in consumer restitution through his Chapter 13 bankruptcy plan, $25,000.00 in civil penalties (suspended), and $5,000.00 in attorney fees and costs (suspended). Defendant agrees to pay the non-dischargeable debts of C&W totaling $16,391.20.
Byler v. Hanoverton Motorcars, Inc., Columbiana Cty. Case No. 2010 CV 366, PIF 2948
Defendants committed unfair and deceptive acts in violation of the CSPA by: 1) misrepresenting to Plaintiff that the lien on his trade-in vehicle would be paid off as part of his purchase of a new vehicle, and 2) failing to integrate into the sales agreement all material statements, representations, and promises made to Plaintiff. Such misrepresentations were knowingly and intentionally made, were false, and were reasonably relied upon by the Plaintiff to his detriment. Additionally, Defendants breached their contract with Plaintiff by failing to pay off the lien on the trade-in, causing a deficiency balance of $5,409.56 being claimed by the lien holder. Defendants ordered to pay treble damages of $16,228.68, non-economic damages of $5,000.00, punitive damages of $20,000.00, and attorney fees of $5,955.00.
Cruz v. Girgis, Cuyahoga Cty. Case No. CV-09-704269, PIF 2954
The Court granted Plaintiff's motion for summary judgment, finding that Defendants had committed multiple violations of the CSPA in the sale of a motor vehicle to Plaintiff, including, but not limited to: 1) engaging in a pattern of inefficiency and incompetency and continual stalling and evading their legal obligations to Plaintiff, 2) engaging in the sale of motor vehicles without being licensed as a dealer or salesperson, 3) engaging in consumer transactions under a fictitious name without first registering that fictitious name with the Secretary of State, 4) failing to display the FTC buyers guide in the window of a used vehicle offered for sale, 5) selling a motor vehicle without having first obtained the certificate of title, 6) failing to provide an odometer statement, and 7) repossessing the collateral in a consumer transaction where seller had no legal right to repossession. Plaintiff granted $5,100.00 in damages, plus reasonable attorney fees.
In re Carrington Mortgage Services, LLC, AVC No. 362717, PIF 2946
Supplier agrees to the following standards for servicing all residential mortgage loans in Ohio. Supplier shall establish a single point of contact for borrowers once they have submitted a fully completed and executed HAMP loan modification package to Supplier's dedicated e-mail address or fax number. Supplier shall cease all collection calls to a borrower within seven days of receiving a fully executed and completed HAMP loan modification package from a borrower. Supplier shall issue a letter acknowledging receipt of a HAMP loan modification package within ten days of receipt, and shall review the package for completeness within thirty days of receipt and issue a trial period agreement, issue a non-approval notice with a specific reason, or issue a notice of incomplete package giving the borrower an additional 30 days to provide any outstanding items. Borrowers shall have ten days from receipt of a trial period agreement, or other loan modification offer, to sign and return the agreement. If a borrower fails to execute an agreement or other loan modification within ten days of receipt, fails to provide a complete loan modification package, or is otherwise not eligible for a loan modification, Supplier shall be entitled to pursue ordinary course servicing practices. If a borrower's loan has not been previously modified and a modification is denied, the denial shall be presented for review to the Risk Management & Internal Audit Department. For owner-occupied properties, once a fully completed loan modification package has been submitted, Supplier shall suspend all ongoing foreclosure proceedings and shall refrain from initiating any new foreclosure proceedings for a period of 90 days. Supplier agrees to only charge default and foreclosure-related fees for services that are actually performed and agrees not to charge any mark ups on third party fees unless it actually performs additional services that provide reasonable value. Supplier agrees that it will not compensate foreclosure counsel based upon the relative speed with which a foreclosure case is concluded and agrees to make a good faith effort to participate in the Rescue Payment Assistance and Partial Mortgage Payment Assistance programs offered by the Ohio Housing Financing Agency's Restoring Stability Program. The above standards are to be sunset three years from the date of the AVC. With regard to the 29 borrowers subject to the January 29, 2009 Settlement Agreement, Supplier agrees to maintain and follow the Qualified Loan Borrowers program. The Ohio Attorney General's (OAG) office shall determine which of the borrowers are interested in obtaining a loan modification and remaining in their homes and which are interested in other loss mitigation relief, and shall forward that information, along with completed HAMP packages to Supplier. Supplier shall complete an eligibility assessment for each borrower within ten business days of receipt of the borrowers' packages. Supplier shall provide a response to the OAG and to any borrower who does not qualify for a loan modification that outlines the applicable reason(s) for the denial.
UNCONSCIONABLE ACTS AND PRACTICES
State ex rel DeWine v. Alliance Coin, Inc., Hancock Cty. Case No. 2009 CV 573, PIF 2949
It is an unfair and deceptive act or practice in violation of the CSPA for a supplier to represent that the subject of a consumer transaction is of a particular standard, quality, or grade when it is not. It is an unconscionable act or practice in violation of the CSPA for a supplier to: 1) enter into a consumer transaction knowing that the price of the goods or services was substantially in excess of the price at which similar goods or services were readily obtained in similar transactions by like consumers, 2) enter into consumer transactions while knowing of the consumers' inability to receive a substantial benefit from the subject of the consumer transaction, 3) knowingly make a misleading statement of opinion on which the consumer was likely to rely to his detriment, or to 4) subject consumers to high pressure sales tactics, including lengthy sales presentations, refusing to take "no" for an answer, and creating a false sense of urgency to commit to purchases. Defendants ordered to pay $68,212.00 in consumer restitution, $150,000.00 in civil penalties ($135,000.00 suspended), and $16,785.00 in investigative costs.
TELEPHONE SOLICITATION SALES ACT
State ex rel DeWine v. Alliance Coin, Inc., Hancock Cty. Case No. 2009 CV 573, PIF 2949
It is a violation of the Telephone Solicitation Sales Act ("TSSA") for a supplier to: 1) act as a telephone solicitor without having first obtained a certificate of registration, 2) act as a telephone solicitor without first obtaining a surety bond, 3) fail to disclose, before requesting payment, the rights granted to the purchaser by R.C. 4719.07 and the material terms and conditions of any refund, cancellation, exchange or repurchase policies, 4) submit charges to a purchaser's account without having received an original signed copy of a written confirmation, or to 5) misrepresent, directly or by implication, the nature or characteristics of the goods or services and to make false or misleading statements to induce a consumer to pay for goods or services. Defendants ordered to pay $68,212.00 in consumer restitution, $150,000.00 in civil penalties ($135,000.00 suspended), and $16,785.00 in investigative costs.