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Fair Debt Collection: 2.5.7.5.4 Filing an FDCPA class action

The decision to file a complaint as a class action is often faced most squarely after the initial investigation and research are completed.82 If a class action is consistent with the client’s objectives and the program’s or firm’s priorities, additional inquiry should be made to determine if adequate legal and financial resources are available for the particular case. A lawyer without the necessary resources may need to bring in another firm to meet that need.

Fair Debt Collection: 2.6.5 Causation Is an Important Element in the Proof of Damages

Issues of causation must be considered in seeking actual damages in debt collection cases. Consumers suffering from abusive debt collection tactics are often in a financially distressed position which is stressful in itself. Injuries may have resulted from another traumatic event, such as illness, marital problems, or loss of employment.

Fair Debt Collection: 2.6.7 Establishing Deception

The Seventh Circuit has uniquely imposed a burden on consumers of proving deception by expert testimony, preferably supported by consumer survey testimony. Difficulties with conducting surveys are discussed at § 11.6.3, infra. Recent Seventh Circuit decisions have retreated from the survey requirement, and other Circuits have different views.

Fair Debt Collection: 2.7.1 Overview

While punitive damages awards may be unavailable for FDCPA violations, they are available in most states for certain tort claims. Such claims have special applicability to debt collection harassment and are considered at § 11.10.3, infra.

Fair Debt Collection: 2.11 Injunctions, Administrative Agency Complaints, and Community Education

There are situations involving debt collection abuse in which an action for damages is not appropriate. This may be because the consumer suffered no actionable damages or because the difficulty of establishing damages makes the probability of recovery slight. It may be that individual actions for damages are not among a program’s or lawyer’s priorities and successful referral to another lawyer is unlikely. The client may be unwilling to pursue damages. An award of damages may not seem likely to deter what appears to be a pattern of community-wide abuse.

Fair Debt Collection: 2.12 Careful Evaluation of Appealing Adverse Lower Court FDCPA Decisions

Some circuit court panels have little empathy for consumers who are struggling with debt, debt collectors, and the anxiety and other problems that are often associated with financial struggles. In considering the appeal of an adverse lower court decision, a fundamental consideration is how the consumer’s case will present to an appellate panel that does not come to the case with some empathy for a struggling consumer.

Fair Debt Collection: 2.13 Consumers Representing Themselves in Court

Consumers representing themselves in court must overcome tremendous hurdles. Unless the pro se consumer is legally trained, in addition to learning the FDCPA, they must master the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the local court’s rules, and often other state and federal laws that are related to their claim. Unrepresented consumers lack the objectivity that a good lawyer could bring to their case. They cannot speak about the plaintiff in the third person, a serious handicap if there are emotional distress damages involved.

Unfair and Deceptive Acts and Practices: 8.1.1.1 Sales Misrepresentations

Federal and state laws governing manufacturing and safety standards, installation of homes, financing, transportation, warranties, and repossession are analyzed in other books in this series.1 UDAP statutes can provide additional remedies for violations of these other statutes and can also be used to define additional unfair or deceptive manufactured home practices.

Unfair and Deceptive Acts and Practices: 8.1.1.4 Land-Home Packages

The sale of a manufactured home along with a lot to install the home is called a “land-home package.” In some parts of the country, these land-home packages are more common than purchases of homes to be placed in manufactured home communities. Usually the lot owner is a separate entity than the home dealer. The lot owner will subdivide land into lots, and establish a business arrangement with a manufactured home dealer. The consumer then effectively engages in two transactions, a home purchase and a real estate closing, although the consumer may view these as a single transaction.

Unfair and Deceptive Acts and Practices: 8.1.2.2 Tying Arrangements in Sale of Manufactured Homes, Utilities, or Other Products; Discriminatory Practices

A common complaint about manufactured home communities is that the community owner requires residents to purchase utility service or other goods or services from a specified supplier. Some state manufactured home community statutes prohibit this practice, or prohibit making a profit on certain required purchases.31 Even if the practice does not run afoul of such a statute, it may violate the state UDAP statute.

Unfair and Deceptive Acts and Practices: 8.1.2.3 Unfair Restriction on Tenant’s Sale of the Home

A manufactured home community may engage in unfair practices where it assesses charges or places other restrictions on a resident’s sale of the resident’s own manufactured home.36 Such restrictions may also amount to the tort of intentional interference with a prospective contract.37 It is not unfair, however, for a manufactured home community to offer a low price for a home when other buyers were available to the consumer.38

Unfair and Deceptive Acts and Practices: 8.1.2.4 Licensure, Leases, Restrictions on Fees, Habitability

Operating a manufactured home community without a license required by the state is a UDAP violation.42 Other UDAP case law prohibits manufactured home communities from requiring tenants to sign leases that include illegal and unenforceable clauses,43 even if the community does not enforce these clauses.44 But the Vermont Supreme Court ruled that a community owner’s demand for a rental amount that had been disapproved under a rent control statute was not

Unfair and Deceptive Acts and Practices: 8.1.2.5 Manufactured Home Community Eviction Practices

Most states have statutes restricting the grounds on which manufactured home community residents can be evicted.49 In Wisconsin, the issue is addressed in part by UDAP regulations that, among other things, require manufactured home communities to disclose the grounds for eviction, prohibit retaliatory eviction, and prohibit the community owner from evicting a resident in order to make the site available for another buyer who is purchasing a home from the community owner.50

Unfair and Deceptive Acts and Practices: 8.1.2.6.1 Resident ownership of the manufactured home community

The fundamental problem for manufactured home community residents is that they own manufactured homes that are installed on rented land, leaving them extremely vulnerable to overreaching by the community owner. “Mobile homes” are not really very mobile; they cost thousands of dollars to move, not counting the potential for serious structural damage to the home. Moreover, there may be no other place to go. In many areas there are no manufactured home communities that will accept a home moved from another park.

Unfair and Deceptive Acts and Practices: 8.1.2.6.2 Manufactured home community legislation

Most states have enacted specific legislation dealing with manufactured home communities.60 Some of the state statutes are comprehensive, dealing with a wide array of issues faced by residents in these communities. Many of these statutes require a written lease, good cause for eviction, disclosure of fees, and notification to residents of changed land use. Typical statutes also prohibit unreasonable rules, waiver of statutory rights, retaliatory evictions, and restrictions on a resident’s choice of vendors.