By Nicole F. Munro and Thomas B. Hudson
Interesting times. We hope you and your loved ones are safe and healthy and that you and we make it through this virus mess with as little damage as possible. Virus or not, some parts of the world go on, so here’s our monthly article on selected legal developments we think might interest the auto sales, finance, and leasing world.
This month, all of the agencies sprang into action with COVID-19-related guidance. Although we couldn’t possibly include all those developments, we’ve included a representative sample of what the agencies and Congress have been doing. For a more comprehensive list, you can visit Hudson Cook’s COVID-19 resources website at https://www.hudsoncook.com/covid-19/. A few other non-virus-prompted developments did make their way into the news.
As usual, our article features the “Case of the Month” and our “Compliance Tip,” which this month isn’t a tip, but a request.
Note that this column does not offer legal advice. Always check with your lawyer to learn how what we report might apply to you, or if you have questions.
Congress Passes COVID-19 Legislation. On March 27, HR 748, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was enacted to provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic. On March 6, HR 6074, the Coronavirus Preparedness and Response Supplemental Appropriations Act was enacted to make supplemental appropriations for the fiscal year ending September 30, 2020.
CFPB Releases COVID-19 Policy Statements. On March 26, the Consumer Financial Protection Bureau issued several policy statements to provide financial institutions with greater flexibility and to reduce administrative burdens. In particular, the CFPB announced that it will work with affected institutions in scheduling examinations and other supervisory activities to minimize disruption and burden. Also, CFPB enforcement activities will consider current staffing and related resource challenges confronting institutions and their counsel.
FTC Chairman Issues Statement on FTC’s Response to National Emergency. On March 26, Federal Trade Commission Chairman Joe Simons issued a statement regarding the FTC’s response to the COVID-19 national emergency, reminding businesses that the FTC will “remain flexible and reasonable in enforcing compliance requirements that may hinder the provision of important goods and services to consumers.” The FTC will not “tolerate companies deceiving consumers, using tactics that violate well-established consumer protections, or taking unfair advantage of these uniquely challenging times. At all times, good faith efforts undertaken to provide needed goods and services to consumers will be taken into account in making enforcement decisions.”
Agencies Encourage Loan Modifications. On March 22, the Federal Reserve Board, CFPB, Federal Deposit Insurance Corporation, National Credit Union Administration, Office of the Comptroller of the Currency, and the Conference of State Bank Supervisors provided additional information to financial institutions working with customers affected by COVID-19, specifically regarding loan modifications. The agencies encouraged institutions to work with borrowers unable to make their payment obligation because they are affected by COVID-19. The agencies view loan modification programs as positive actions that can mitigate adverse effects on borrowers during this national emergency and will not criticize institutions for working with affected borrowers in a safe and sound manner to modify loan terms. Also, the agencies will not direct institutions to automatically categorize all COVID-19-related loan modifications as troubled debt restructurings.
CFPB Extends Comment Period for Proposed Time-Barred Debt Rules. On March 20, the CFPB extended to June 5, 2020, the comment period for its supplemental notice of proposed rulemaking on time-barred debt, originally set to expire May 4, 2020.
CFPB Reinforces Commitment to Preventing Consumer Harm. On March 6, the CFPB announced three steps to reinforce its commitment to prevent consumer harm: proposing to amend the Dodd-Frank Act to authorize it to award whistleblowers who report violations of federal consumer financial law that lead to successful enforcement actions, implementing an advisory opinion program to provide guidance to regulated entities on their legal and regulatory obligations, and amending and reissuing its “Responsible Business Conduct” bulletin addressing self-assessing, self-reporting, remediating, and cooperating.
FTC Seeks Information on Proposed Safeguards Rule Amendments. The FTC will hold a workshop on May 13, 2020, seeking research, testimony, and other information on proposed amendments to the Safeguards Rule. The FTC is seeking information on topics such as price models for specific elements of information security programs, standards for security in various industries, the availability of third-party information security services aimed at different sized institutions, information on penetration and vulnerability testing, and the costs of possible alternatives to encryption and multifactor authentication. Public comments are due by June 12.
Case of the Month
Some laws regulating dealership activities apply regardless of the state of mind of a person doing an act that violates the law. Other laws require a showing that the actor had the intent to violate the law. A recent case illustrates the difference.
Statement Auto Sales bought a 2002 Honda CR-V with 206,001 miles on the odometer. Statement’s repair of inoperable gasoline and temperature gauges required a replacement of the car’s odometer. Statement used a replacement that displayed 122,615 miles. Statement did not reset the odometer to zero or affix a written notice to the driver’s door frame specifying the mileage before the replacement, as required by Section 32704(a) of the Motor Vehicle Information and Cost Savings Act (the “Federal Odometer Act”).
Anthony Holder bought the CR-V from Statement. The certificate of sale listed the odometer reading as 122,615 but stated, in bold capital letters, that there was an odometer discrepancy and that the odometer reading was not the actual mileage.
After Holder experienced difficulties with the car, he located an inspection form indicating an odometer reading from the prior year of 202,894. Holder sued Statement for violations of the Federal Odometer Act and New York General Business Law § 349 and for fraud and fraudulent misrepresentation. A magistrate judge for the U.S. District Court for the Eastern District of New York recommended that the court grant Statement’s motion for summary judgment on the Federal Odometer Act claims.
Holder argued that intent to defraud is not an element of a claim under Section 32704(a). The magistrate disagreed, noting that, under Section 32710(a), a private right of action is available only for violations with an intent to defraud. The magistrate concluded that there was no evidence that Statement acted with an intent to defraud, especially given that it affirmatively disclosed that the odometer reading was incorrect.
Because the magistrate recommended that the court grant Statement’s summary judgment motion on the sole federal law claim, he also recommended that the court decline to exercise jurisdiction over the remaining state law claims.
So, sometimes, intent or the lack thereof matters. You might want to save this one for your litigation file.
Holder v. Statement Auto Sales, 2020 U.S. Dist. LEXIS 28483 (E.D.N.Y. February 18, 2020)
This Month’s CARLAWYER© Compliance Tip
We don’t have a legal tip this month, but we will remind all dealers who have repair facilities that the masks that are frequently used in their shops are desperately needed by health care professionals. If you can spare any, hustle them over to your nearest hospital – they might save some lives. We hope you weather the storm and come back strong.
So, there’s this month’s article. See you next month!
Nikki (email@example.com) is a Partner in the law firm of Hudson Cook, LLP, Editor in Chief of CounselorLibrary.com’s CARLAW®, a contributing author to the F&I Legal Desk Book and a frequent writer for Spot Delivery®, a monthly legal newsletter for auto dealers. Tom (firstname.lastname@example.org) is Of Counsel to the firm, has written several books and is a frequent writer for Spot Delivery®. He is the Senior Editor of CARLAW®. For information, visit www.counselorlibrary.com. ©CounselorLibrary.com 2020, all rights reserved. Single publication rights only, to the Association. HC/4822-5952-0953.1