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Truth in Lending: F.6 Sample Consumer Leasing Act Interrogatories

This discovery is based on documents provided by Michael Donovan, David Searles, and Cary Flitter, all Pennsylvania attorneys with consumer law practices.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

BRIAN S. SMITH, MICHAEL PARKER and MICHELLE PARKER, h/w on behalf of themselves and all others similarly situated Plaintiffs

Plaintiff

v.

NISSAN MOTOR ACCEPTANCE CORP.

Defendant

CLASS ACTION

JURY TRIAL DEMANDED

Truth in Lending: F.7 Sample Consumer Leasing Act Request for Production of Documents

This discovery is based on documents provided by Michael Donovan, David Searles and Cary Flitter, all Pennsylvania attorneys with consumer law practices. It is based on the particular facts of a case and must be adapted by a competent professional for use in other cases. A version of this request in Microsoft Word format is available as online companion material to this treatise.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

Collection Actions: KANSAS

Has state opted out of federal bankruptcy exemptions? Yes, except as to 11 U.S.C. § 522(d)(10) (benefits, alimony, support, maintenance, certain pensions and similar payments). Kan. Stat. Ann. § 60-2312.

Is opt out limited to residents or domiciliaries of the state? Not specified. Kan. Stat. Ann. § 60-2312: “[N]o person, as an individual debtor under the [Bankruptcy Code], may elect exemptions pursuant to [§ 522(d)].”

Do state’s exemptions have extraterritorial application?

Collection Actions: KENTUCKY

Has state opted out of federal bankruptcy exemptions? No. Ky. Rev. Stat. Ann. § 427.170 (West).

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: No. Ky. Rev. Stat. Ann. § 427.060 (West) applies to “real or personal property . . . that such debtor or . . . dependent . . . uses as a permanent residence in this state.”

Collection Actions: MISSISSIPPI

Has state opted out of federal bankruptcy exemptions? Yes. Miss. Code Ann. § 85-3-2.

Is opt out limited to residents or domiciliaries of the state? Yes. Miss. Code Ann. § 85-3-2: “Residents of the State of Mississippi shall not be entitled to the federal exemptions . . . [in § 522(d)].”

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Collection Actions: OKLAHOMA

Has state opted out of federal bankruptcy exemptions? Yes. Okla. Stat. tit. 31, § 1(B).

Is opt out limited to residents or domiciliaries of the state? Yes. Okla. Stat. tit. 31, § 1(B): “No natural person residing in this state may exempt from the property of the estate in any bankruptcy proceeding the property specified in [§ 522)d)] . . . .”

Do state’s exemptions have extraterritorial application?

Collection Actions: OREGON

Has state opted out of federal bankruptcy exemptions? No. Or. Rev. Stat. § 18.300.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Yes. See In re Stratton, 269 B.R. 716 (Bankr. D. Or. 2001) (Oregon homestead exemption applied to property in California).

Personal property: Probably yes, based on In re Stratton, 269 B.R. 716 (Bankr. D. Or. 2001).

Collection Actions: PENNSYLVANIA

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: No exemption.

Personal property: Uncertain.

Wages: 23 Pa. Cons. Stat. § 3703; 42 Pa. Cons. Stat. § 8127.

Scope: Wages, salaries and commissions of individuals. 42 Pa. Cons. Stat. § 8127.

Collection Actions: VERMONT

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Yes. See In re Oliver, 182 B.R. 699 (Bankr. D. Vt. 1995) (debtor may use Vermont homestead to exempt proceeds of sale of property in another state).

Personal property: Uncertain.

Collection Actions: VIRGIN ISLANDS

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Wages: V.I. Code Ann. tit. 5, §§ 521, 522.

Collection Actions: WISCONSIN

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Probably not. Wis. Stat. § 815.18(5) provides: “A resident is entitled to the exemptions provided by this section. A non-resident is entitled to the exemptions provided by the law of the jurisdiction of his or her residence.”

Truth in Lending: 11.3.2 Co-Obligors

In the usual case, the person seeking Truth in Lending remedies is a “consumer” who is the primary obligor in the credit transaction (for purposes of the right to rescind, the definition of consumer is expanded).236 However, liability arises when a creditor fails to comply with TILA requirements “with respect to any person.”237 “Person” is more broadly defined than “consumer” and includes a natural individual or an organization.238 The

Truth in Lending: 11.3.3 Forgery Victims

Two circuit courts have considered whether a consumer who is the victim of a creditor-committed forgery can pursue a TILA claim based on the forged document.

Truth in Lending: 11.2.2 The Supreme Court’s Decision in Spokeo v. Robins

In its 2016 decision, Spokeo, Inc. v. Robins,22 the Supreme Court for the first time addressed the issue of constitutional standing in a case under a chapter of the federal Consumer Credit Protection Act—the Act that includes TILA. The primary claim at issue was a violation of a requirement of the FCRA that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of” consumers’ reports.23

Truth in Lending: 11.2.3.6 Procedural vs. Substantive Requirements—Does It Make a Difference?

The Spokeo decision dwelt on a characterization of the case’s FCRA violations as merely “procedural.” Although the Spokeo Court did not clearly indicate the role of the distinction between procedural and substantive violations, many decisions have given meaning to this distinction, often by giving greater weight or conclusive weight to Congress’s judgment in enacting a statute that creates substantive protections and grants a private remedy for violations.72

Truth in Lending: 11.2.4.2.2 Violation of post-consummation disclosure requirements

TILA requires certain disclosures during the life of a contract, after consummation, such as when a mortgage loan is transferred, modified, or assumed, or when a consumer requests the identity of the loan holder.118 The creditor or servicer of a mortgage loan must also provide periodic statements, payoff statements, and escrow cancellation notices.119 A credit card issuer must provide: periodic statements; notice of the addition of new credit features; disclosures of changes in terms, th

Truth in Lending: 11.2.4.2.3 Mortgage payoff statements

Another example of a post-consummation disclosure is the payoff statement that a creditor must provide to a consumer in the mortgage loan context.126 When issuing the 2008 rule, the Federal Reserve Board described the harm that the payoff statement rule was designed to prevent:

Truth in Lending: 11.2.4.4 Pleading to Show Standing

The Supreme Court summarized the crux of its Ramirez decision as “No concrete harm, no standing.”205 While the Court did not provide an equally pithy explanation of what constitutes concrete harm, plaintiffs should still strive to explain their injury as explicitly as possible to survive pro forma motions to dismiss. Of course, surviving a motion to dismiss is not the same as prevailing on a motion for summary judgment.

Truth in Lending: 11.3.4.1.1 General

Upon the filing of the bankruptcy petition, all property of the debtor becomes property of the bankruptcy estate.258 The estate’s property includes the debtor’s existing legal claims.

Truth in Lending: 11.3.4.1.2 Removing the TILA claim from the bankruptcy estate

The debtor has the ability to exclude property interests, including legal claims, from the bankruptcy estate. The debtor can accomplish this in two ways. One way is to “exempt” the property interest. The other is to have the bankruptcy estate “abandon” any interest in the property. Exemption and abandonment are specific concepts defined by the Bankruptcy Code. The Code sets out the procedures that a debtor must follow in order to have estate property exempted or abandoned. As will be discussed below, it is important that practitioners familiarize themselves with these procedures.

Truth in Lending: 11.3.4.1.3 Did the TILA claim arise before the bankruptcy filing?

For purposes of determining whether a legal claim belongs to the debtor or to the bankruptcy estate, the timing of the filing of the petition for bankruptcy relief is critical. If the claim arose after the filing of the chapter 7 petition for relief, then it remains the borrower’s cause of action and does not generally become part of the bankruptcy estate.283