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Federal Deception Law: VIRGINIA

Va. Code Ann. §§ 8.01-216.1 to 8.01-216.9 (Fraud Against Taxpayers Act)

Claims covered by the statute: Include knowingly false statements regarding a claim for payment presented to the commonwealth or commonwealth’s grantee or contractor, conspiracy to commit such a violation, failure to return public property or money, knowing purchase of public property from officer or employee of commonwealth who lawfully may not sell the property, and knowing concealment or avoidance of an obligation to pay or transmit property to the commonwealth. § 8.01-216.3(A).

Truth in Lending: Introduction

The following are sample jury instructions for demonstration purposes only. They must be adapted by a competent professional to meet the circumstances of a given case and the requirements of local rules and practice. Attorneys should cite case law or other authority from their jurisdictions where possible to support the points made in these instructions. The court cases cited are only representative; they are not exhaustive. These samples are based on actual instructions used in TILA cases by several consumer attorneys.1

Truth in Lending: G.1 General TILA Instructions

Plaintiff’s Jury Instruction No. ______

(Purposes of TILA)

The Truth in Lending Act is a federal law passed to provide consumers with important information about the terms of loans so they can better understand the costs of borrowing. The Act provides additional protections for consumers who are borrowing money against their homes (principal dwelling). The requirements of the Truth in Lending Act can be technical but Congress intended that this law be strictly enforced to protect homeowners from the loss of their homes.

Truth in Lending: G.2 TILA Disclosure Instructions

Plaintiff’s Jury Instruction No. ______

(TILA Disclosure Requirements)

Defendant is a “creditor” within the meaning of the Truth in Lending Act and the Plaintiff is a “consumer” in the eyes of the law.

First, this law requires that the creditor make certain “cost of credit” disclosures to the consumer before consummation of the transaction, in other words, before the consumer becomes obligated under the contract.

Truth in Lending: G.4 HOEPA Instructions

Plaintiff’s Jury Instruction No. ______

(HOEPA’s Purposes and Protections)

The Home Ownership and Equity Protection Act is a federal law passed by Congress that creates extra protections for homeowners whose loans are high cost. This law is often called HOEPA and is a part of the Truth in Lending Act.

Truth in Lending: 13.1.1 Summary of Consumer Leasing Act Requirements

The Consumer Leasing Act (CLA) and Regulation M specify approximately thirty terms that must be disclosed to lessees, and require that charges on default or early termination be reasonable. Failure to comply with any disclosure requirement or the reasonableness requirement can lead to a statutory damages award plus actual damages and attorney fees. There are also a number of CLA lease advertising requirements, with private remedies if the consumer is damaged.

Truth in Lending: 13.5.4.4 Manufacturer “Supported” Residual Values

A special issue arises when a manufacturer “supports” an inflated residual by agreeing to subsidize the lessor because the vehicle at lease end will be worth less than the inflated residual. A lessor can use the inflated residual to lower the amount the lessor loses to depreciation over the lease term, allowing the lessor to reduce monthly lease payments (if it keeps rent charges the same). This can result in more of the manufacturer’s vehicles being sold.

Automobile Fraud: 7.7.6 Recordkeeping Requirements

Dealer licensing statutes also commonly include recordkeeping requirements designed to thwart fraud.325 These requirements vary from state to state, but may include information about the previous owner, the date of purchase, and the vehicle identification number for each vehicle the dealer buys; a description of each vehicle; a description of the body or chassis of used vehicles sold and any vehicle disassembled or altered; the sale price; the name and address of the purchaser; and copies of the title, the warranty, and other documents.

Automobile Fraud: 7.8.2 Disclosure and Title-Branding Requirements

A number of statutes require automobile auctioneers to disclose substantial background information regarding vehicles.333 Maine requires the most disclosure, including the vehicle make, model, and identification or serial numbers; odometer reading; name and address of the previous owner, including the principal use of the vehicle; the means by which the prior owner acquired the vehicle; all known mechanical defects; the extent of any damage, such as by fire, water, or collision; whether implied warranties are excluded or modified; whether t

Automobile Fraud: 7.8.3 Other Requirements

Other statutes specific to automobile auctions are more limited and involve disclosure regarding the nature of a warranty or guaranty,336 compliance with safety and pollution requirements,337 vehicle identification numbers,338 whether a vehicle is rebuilt,339 and whether a manufacturer was required to replace or repurchase a vehicle due to defect.340

Automobile Fraud: 7.8.4 Private Remedies

The Maryland, New York, Pennsylvania, South Carolina, and Washington statutes regarding automobile auctions contain a private right of action for violations.345 In other states, the auction’s violation of state standards may be a state UDAP violation or lead to a fraud claim.346 Motor vehicle auctions may be required by state law to post a bond that will be available to pay specified types of judgments obtained by consumers.347

Automobile Fraud: 10.12.1 Availability of Attorney Fees

Many of the statutes under which automobile fraud claims are brought, including the Motor Vehicle Information and Cost Savings Act, many state odometer statutes, federal RICO and most state RICO statutes, many state lemon laws and damage disclosure laws,708 the Magnuson-Moss Warranty Act, and nearly all state deceptive practices (UDAP) statutes, allow an award of attorney fees if the consumer is successful.

Automobile Fraud: 10.12.2 Pleading Attorney Fees and Other Initial Steps to Obtain Fees

In drafting an automobile fraud pleading, the consumer’s attorney should be careful to include at least one claim under a fee-shifting statute. If there is any possibility of asserting such a claim, the attorney should keep careful, detailed, contemporaneous records of time and any expenses, including pre-suit activity such as investigation and negotiation.

Automobile Fraud: 10.12.3 Standards for Determining Fees

There is a large body of case law interpreting the fee-shifting provisions of federal statutes.716 Many states have built up their own body of law interpreting state fee-shifting statutes,717 but most state courts give considerable weight to federal interpretations of comparable federal statutes.718

Automobile Fraud: 10.12.4 Procedure for Requesting Fees

Ordinarily, a fee request is submitted to the court, not the jury, after the plaintiff is awarded damages.730 This procedure is preferable to submitting attorney fee issues to the jury, which would unnecessarily complicate the case, and introduce side issues that distract attention from the consumer’s case. Only if the award of attorney fees is sought as consequential or incidental damages should the claim be submitted to the jury.731

Automobile Fraud: 10.12.5 Attorney Fees When Case Is Settled

Fee arrangements can be tricky when a case is settled. For example, the defendant may offer an amount that is sufficient to make the consumer whole, but insufficient to pay the consumer’s attorney a reasonable fee as well. Or the defendant may accept return of a vehicle, without any money changing hands. To avoid the dilemmas created by this type of settlement tactic, it is important for the consumer and the consumer’s attorney to have worked out in advance a clear understanding of how fees will be handled if there is a settlement.735

Automobile Fraud: 10.13.1.1 Locating Dealer Bank Accounts

If a defendant does not voluntarily pay a judgment, state law collection procedures will need to be used to enforce the judgment. This effort can be complicated by the difficulty in locating a dealer’s assets. The most obvious assets of the dealership—the vehicles displayed for sale—are likely to be covered by a superior lien pursuant to the dealer’s floor plan financing arrangement.

Automobile Fraud: 10.13.1.2 Collecting from Debts Owed to the Dealer

Another way to collect a judgment against the dealer is to search local court records for suits the dealer has filed. If the dealer has won judgments against other people or companies, the payments on those judgments can be attached. This method of collecting a judgment has particular potential because the people the dealer has sued may be delighted to pay someone other than the dealer, so may be more cooperative than other garnishees.

Automobile Fraud: 10.13.1.3.1 Information from and payments owed by manufacturer

Manufacturers require franchised dealers to make periodic reports on their financial status. These reports can help locate assets. They are also a helpful way of verifying a claim by a dealer that it is on the brink of going out of business.

A manufacturer may also owe money to a franchised dealer, for example for advertising. The consumer can collect against this obligation by garnishing the manufacturer. Similarly, a bank or other financing entity that purchases installment contracts from the dealer may owe money to the dealer.