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HUD Housing Programs: Tenants’ Rights (The Green Book): 9.1 Introduction
Tenant organizations have long been instrumental in protecting residents’ rights, preserving affordable housing, and forwarding national and local policy.1 There are different types of tenant organizations, such as local resident groups representing individual buildings of public housing, citywide groups that focus on federal housing issues, as well as statewide and nationwide groups. Resident participation can ensure that tenants play an integral role in the management process and promote services benefiting all residents.
HUD Housing Programs: Tenants’ Rights (The Green Book): 9.2.1 Overview
In 1986, HUD published a regulation to provide for more proactive tenant participation by public housing residents.3 The regulation included a statement of HUD’s tenant participation policy.4 In 1994, HUD substantially revised the resident participation regulation in response to requests from tenant organizations and after working with an Interim Resident Advisory Committee.5 The revised regulation added a new HUD policy on partnerships betwe
HUD Housing Programs: Tenants’ Rights (The Green Book): 9.5.4 Cooperative Housing
Privately-owned subsidized housing is unique because it can be owned cooperatively, which should facilitate resident participation. Housing cooperatives place the control in the members as they are run by a board of directors elected by the cooperative membership. The board has the power to select new members for the cooperative, establish the monthly carrying charges (i.e., housing or occupancy charge) for the units, employ management, terminate members for cause, and promulgate other necessary rules and regulations. Generally, the entire membership must meet at least annually.
HUD Housing Programs: Tenants’ Rights (The Green Book): 9.5.6 Tenant Organizing Resource
The national resident-run organization for HUD-subsidized housing tenants is the National Alliance of HUD Tenants (NAHT), located in Boston, MA.178 NAHT facilitates the exchange of information among members and enables advocacy on common issues through a website, events, and periodic conference calls. Issues raised by members are brought to HUD staff, Congressional leaders, as well as to other advocates who may be confronting similar issues in their locality.
HUD Housing Programs: Tenants’ Rights (The Green Book): 9.6 Form Of Organization
The most advantageous organizational form for a tenant organization depends on the size, purpose, and functions of the group. Tenant organizations range from small social groups to activist groups organized to serve as a negotiating unit for tenants in a particular project. In addition, tenant groups can be organized to receive grant monies to operate social service programs for residents. Furthermore, the organizations can be resident management corporations or entities that contract with the PHA to perform certain management functions.
HUD Housing Programs: Tenants’ Rights (The Green Book): 9.7 Representing Tenant Organizations
Oftentimes, a legal services organization or other housing advocacy group will provide legal representation to a tenant organization.182 In many cases, the interests of the resident organization and individual tenant clients will be the same, although advocates should note that interests can, and do, diverge at times.
HUD Housing Programs: Tenants’ Rights (The Green Book): 3.1 Introduction
A lease defines the landlord-tenant relationship and the mutual rights and obligations of both parties. It may also establish rights and duties that exceed the minimum requirements of federal, state and local law.1 While a tenant’s lease often must be approved by the Department of Housing and Urban Development (HUD) or the relevant public housing authority (PHA), such approval does not ensure an equitable lease. Negotiation of lease terms by a strong tenant organization is the most effective means of securing fair leases for all tenants.
Unfair and Deceptive Acts and Practices: 6.5.1 Credit Costs That Are Grossly in Excess of Those Usually Charged in Market
UDAP statutes that prohibit unfair or unconscionable practices have been successfully applied where the interest or other credit costs are excessive in comparison to those generally available.169 This approach can reach exorbitant credit charges even when they are legal under state or federal credit statutes.
Unfair and Deceptive Acts and Practices: 6.5.2.1 Nature and Requirements of State Prohibitions
Even without an explicit reference to credit costs, UDAP statutes’ general prohibitions of unfairness can be used to challenge exorbitant credit charges. Many of the states that prohibit unfair practices use a definition that evaluates whether the practice offends public policy, is immoral, unethical, oppressive, or unscrupulous, and causes substantial consumer injury.178 This standard is readily applicable to exorbitantly priced credit.
Unfair and Deceptive Acts and Practices: 6.5.3 Uncovering Deception in Excessive Charge Cases
Cases that involve excessive charges rather than deception are more difficult to attack in jurisdictions where the state UDAP statute only prohibits deception, not unfairness or unconscionability. Even where the statute prohibits unfairness, a court may be reluctant to substitute its judgment for the agreement it perceives the parties as having negotiated. For these reasons, it is helpful if there is evidence of deception as well as unfairness.
Unfair and Deceptive Acts and Practices: 4.1 Introduction
This chapter provides a synopsis of precedent interpreting the terms “deceptive” (or “fraudulent”), “unfair,” and “unconscionable” as delineated in the FTC Act and state UDAP statutes. It analyzes not just the definition of these terms, but also how the UDAP development of these terms rejects limitations that apply to common law fraud and contract claims. The meaning of “abusive,” used in a small number of UDAP statutes,1 has not yet been developed in state court decisions, but is sketched out in the final section of this chapter.
Unfair and Deceptive Acts and Practices: 4.2.2 Relationship of Deception to Unfairness, Unconscionability
Many state UDAP statutes prohibit both deceptive and unfair practices or both deceptive and unconscionable practices. The consumer need not show that a practice is unfair or unconscionable and also deceptive. The practice need be only one or the other.9
Unfair and Deceptive Acts and Practices: 4.2.3.2 Statutory Fraud; Misleading Practices
A few state UDAP statutes do not prohibit “deceptive” acts, but proscribe “fraudulent” practices,26 and some prohibit both “misleading” and “deceptive” acts. Nevertheless, the standards developed for “deception” also apply to these related concepts. “Misleading” and “deceptive” are identical in meaning.
Unfair and Deceptive Acts and Practices: 4.2.4.2 Where Statute Explicitly Requires Proof of Intent
A few states impose an intent requirement for at least some prohibitions.49 Courts in these states usually interpret this language as a requirement that the seller intends to do the act, not that the seller intends to deceive.50 In addition, Kansas requires a showing of willfulness for some substantive violations.51 A pattern of misrepresentations shows an intent to deceive.52
Unfair and Deceptive Acts and Practices: 4.2.8 Despite Industrywide Practice
It is no defense to a deception claim under the FTC Act that the challenged practice is engaged in throughout an industry or is “customary” business conduct.110 State UDAP case law also follows this approach.111 For example, the practice of quoting interest as a “per annum” rate, computed on the basis of a 360-day year, violated California’s UDAP statute even though it was a “customary” business practice within the banking community.112 Commercial
Unfair and Deceptive Acts and Practices: 4.2.12.1 Introduction
At common law, to establish a fraud claim the consumer must prove that the misrepresentation was material and that they justifiably relied upon it. These requirements are significant impediments to fraud claims, particularly in class actions. Reliance, especially justifiable reliance, can be difficult to prove, and a requirement of showing reliance would complicate a private UDAP action.
Fortunately, the FTC and many courts in FTC Act and UDAP cases have held that reliance need not be shown, or may be presumed. Materiality likewise may be presumed.
Truth in Lending: 7.12.1.3 Examples of Unsolicited Issuance
Under the Fair Credit Reporting Act, a creditor is permitted to use lists of consumers provided by credit bureaus to extend “firm offers of credit” to these consumers.1423 Standing alone, these firm offers of credit do not constitute the unsolicited issuance of a credit card in violation of TILA § 1642.1424 However, if a “firm offer of credit” is accompanied by the credit card itself, it will violate TILA’s prohibition against unsolicited issuance, despite being permissible under the FCRA.
Truth in Lending: 7.12.2.1 Credit Feature Cannot Be Added on an Unsolicited Basis
A credit card issuer cannot add a credit feature to a non-credit card, except in response to an explicit oral or written request or application for the credit feature from a consumer.1431 For example, the granting of overdraft privileges on a checking account when the consumer already has a check guarantee card constitutes issuance of a credit card.1432 A card issuer can add credit features to an existing credit card without specific request, however, assuming that required disclosures are p
Truth in Lending: 7.12.2.2 Thirty-Day Waiting Period Before Adding a Credit Feature to a Prepaid Card
A prepaid card that accesses a “covered” credit feature is a hybrid prepaid-credit card.1438 Thus, the addition of a covered credit feature to a prepaid card constitutes the issuance of a credit card.1439 In addition, the rules regarding prepaid cards go even further than for other credit cards by imposing a thirty-day waiting period before an issuer can offer, provide, or solicit a consumer to add a separate credit feature that would make a prepaid card into a hybrid prepaid-credit card.
Truth in Lending: 7.12.3.1 General
A card issuer can issue a card in renewal of or in substitution for an accepted card without the consumer’s explicit request or application.1450 A substituted card may be issued by a creditor who purchases the accounts of the original issuer, as long as use of the original card is cut off when use of the new card becomes possible.1451 However, a creditor cannot issue a renewal or substitute card if the credit card account has been closed.1452
Truth in Lending: 7.12.3.3 Acceptance of the Prior Credit Card
A creditor can issue a renewal or substitute credit card only if the original credit card had been “accepted” by the consumer. An “accepted credit card” is one which the consumer has requested and received, signed, used, or authorized another to use.1466 Thus, acceptance of a credit card can occur in a number of ways.