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1.3.2 Scope and Organization of This Treatise

This treatise encourages attorneys dealing with a consumer’s complaint or a consumer facing a collection action to evaluate the applicability and practicality of a UDAP claim. This treatise has been cited in over eighty law review and journal articles, and in many reported decisions.9

Chapter 2, infra, analyzes the scope of UDAP statutes and whether they are displaced by other state or federal laws. Chapter 3, infra, describes approaches for determining if a practice is a UDAP violation. Chapter 4, infra, analyzes the meaning of “deceptive,” “unfair,” and “unconscionable” as used in state UDAP statutes, with a particular focus on UDAP statutes’ rejection of common law and contract defenses and restrictions.

Chapter 5, infra, addresses common deceptive practices such as bait and switch, deceptive billing, and misuse of the word “free.” Chapters 6 through 9, infra, apply UDAP principles to specific industries and types of practices: extenders of credit and debt collectors (Chapter 6); car dealers and repair shops (Chapter 7); real estate sales, landlord-tenant practices, manufactured home sales and parks, home improvement contracts, household goods, and utility and telecommunication service (Chapter 8); and services such as health clubs, buyers clubs, membership campgrounds, health care providers, notarios, pyramid schemes, insurance, and miscellaneous transactions (Chapter 9).

Chapters 6 through 9, infra, discuss not only UDAP approaches in these areas, but also analyze relevant FTC rules and other state laws such as unfair insurance practices statutes. They include extensive investigation and discovery tips for automobile sales and future service contract transactions.

Fraud by vocational schools, while discussed in Chapter 9, infra, is treated in more detail in NCLC’s Student Loan Law.10 Odometer tampering, sale of rebuilt wrecks and laundered lemons, yo-yo sales, and similar motor vehicle sales problems are addressed in detail in NCLC’s Automobile Fraud.11 Fraud by credit repair organizations is analyzed in NCLC’s Fair Credit Reporting.12 Debt management, debt settlement, and debt elimination scams are examined in NCLC’s Federal Deception Law,13 and foreclosure rescue scams are addressed in NCLC’s Home Foreclosures.14

Chapter 10, infra, discusses the parties that may be liable for a UDAP claim and strategies for reaching a deep pocket. It should be supplemented by NCLC’s Federal Deception Law,15 which analyzes the effect of the FTC’s Holder Rule in more detail than found in Chapter 10, infra. FTC’s Holder Rule makes entities that extend credit for goods or services liable in most cases for the wrongful acts of the seller, up to a cap. Additionally, NCLC’s Mortgage Lending,16 goes into even more detail as to limits on a lender’s use of the holder-in-due-course doctrine to avoid liability for the conduct of its assignor.

Chapter 11, infra, covers UDAP litigation issues—whether there is a private right of action, statutes of limitation, retroactive application of statutory amendments, requirements as to damages, public interest, and notice, jurisdictional questions, pleading and framing UDAP claims, discovery and factual investigation, and trial. It also addresses constitutional challenges to UDAP statutes that defendants may raise in litigation.

Chapter 12, infra, discusses private UDAP remedies, including actual damages, statutory damages, multiple damages, injunctive and other equitable relief, attorney fees, and the effect of an arbitration agreement on these remedies. Arbitration agreements are such an important issue, cutting across all areas of consumer law, that a separate NCLC treatise, Consumer Arbitration Agreements,17 is devoted to this topic.

Every state UDAP statute gives enforcement powers to a state government official—usually the attorney general but often local officials as well. Chapter 13, infra, analyzes state UDAP enforcement remedies.

Appendix A, infra, is a statute-by-statute analysis of all state UDAP statutes and regulations. Appendix B, infra, lists useful websites.

Footnotes

  • 9 {7} See, e.g., Guillermerty v. Sec’y of Educ., 241 F. Supp. 2d 727 (E.D. Mich. 2002); Bird v. John Chezik Homerun, Inc., 2000 WL 49333 (W.D. Mo. Jan. 18, 2000); Crews v. Altavista Motors, Inc., 65 F. Supp. 2d 388 (W.D. Va. 1999); Fisher v. Bristol-Meyers Squibb Co., 181 F.R.D. 365 (N.D. Ill. 1998); Taylor v. Jacques (In re Taylor), 292 B.R. 434, 438 n.3 (Bankr. N.D. Ga. 2002); ASRC Energy Servs. Power & Commc’ns, L.L.C. v. Golden Valley Elec. Ass’n, Inc., 267 P.3d 1151, 1162 n.52, 1163 nn.60–61 (Alaska 2012); Borgen v. A & M Motors, Inc., 273 P.3d 575, 591 n.67 (Alaska 2012); Wash. Mut. Bank v. Super. Ct., 82 Cal. Rptr. 2d 564 (Cal. Ct. App. 1999); Walter v. Hall, 940 P.2d 991 (Colo. App. 1996), aff’d, 969 P.2d 224 (Colo. 1998); RW Group, Inc. v. Pharmacare Mgmt. Servs., Inc., 2006 WL 1320225, at *8 (Conn. Super. Ct. Apr. 27, 2006); Luskin’s, Inc. v. Consumer Prot. Div., 726 A.2d 702 (Md. 1999); Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667 (Mo. 2007) (referring to NCLC as “national experts” and citing this treatise); WLW Realty Partners, L.L.C. v. Cont’l Partners VIII, L.L.C., 360 P.3d 1112 (Mont. 2015); State ex rel. Steinberg v. Consumer’s Choice Foods, Inc., 755 N.W.2d 583 (Neb. 2008); Doody v. Worthington, 1991 WL 757571 (Ohio Mun. Ct. Apr. 10, 1991); Patterson v. Beall, 19 P.3d 839 (Okla. 2000); Walls v. Am. Tobacco Co., 11 P.3d 626, 630 n.1 (Okla. 2000); Singleton v. Stokes Motors, Inc., 595 S.E.2d 461, 467 (S.C. 2004); Fayne v. Vincent, 301 S.W.3d 162, 172 (Tenn. 2009); Gansevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997); Bradley v. All Am. Classics of Tenn., Inc., 2009 WL 1034797 (Tenn. Ct. App. Apr. 16, 2009); Foster Bus. Park, L.L.C. v. Winfree, 2009 WL 113242, at *23 (Tenn. Ct. App. Jan. 15, 2009); State v. New Beginning Credit Ass’n, Inc., 2006 WL 1472284, at *8 n.19 (Tenn. Ct. App. May 25, 2006); Tucker v. Sierra Builders, 180 S.W.3d 109, 116 n.10 (Tenn. Ct. App. 2005); Alduridi v. Cmty. Trust Bank, 1999 WL 969644 (Tenn. Ct. App. Oct. 26, 1999); Terry v. O’Brien, 134 A.3d 203, at ¶¶ 36, 39 (Vt. 2015); Inkel v. Pride Chevrolet-Pontiac, Inc., 945 A.2d 855 (Vt. 2008); State v. Int’l Collection Serv., Inc., 594 A.2d 426 (Vt. 1991); White v. Wyeth, 705 S.E.2d 828 (W. Va. 2010).

  • 10 {8} National Consumer Law Center, Student Loan Law (5th ed. 2015), updated at www.nclc.org/library.

  • 11 {9} National Consumer Law Center, Automobile Fraud (6th ed. 2018), updated at www.nclc.org/library.

  • 12 {10} National Consumer Law Center, Fair Credit Reporting Ch. 17 (9th ed. 2017), updated at www.nclc.org/library.

  • 13 {11} National Consumer Law Center, Federal Deception Law Ch. 10 (3d ed. 2017), updated at www.nclc.org/library.

  • 14 {12} National Consumer Law Center, Home Foreclosures Ch. 13 (2019), updated at www.nclc.org/library.

  • 15 {13} National Consumer Law Center, Federal Deception Law Ch. 4 (3d ed. 2017), updated at www.nclc.org/library.

  • 16 {14} National Consumer Law Center, Mortgage Lending § 9.7 (2d ed. 2014), updated at www.nclc.org/library.

  • 17 {15} National Consumer Law Center, Consumer Arbitration Agreements (7th ed. 2015), updated at www.nclc.org/library.