The Lemon Law Blog

One way that companies prevent consumers from enforcing their rights against fraud and defective products is through arbitration. Forced arbitration clauses are hidden in the small print of many standard consumer contracts. These clauses prevent people from taking companies to court for violating the law. Arbitration is a private process that can be expensive, with little opportunity to discover the facts and documents from the other side, no jury, no judge and no right of appeal. Statistics show that consumers win only a small percent of the time.

Some courts have thrown out such arbitration clauses as unconscionable, in part because consumers have no choice but to agree to the provision when they sign the contracts and have no idea what they are getting themselves into. To avoid having the courts throw out the arbitration clause, some companies are beginning to offer consumers the right to opt-out of arbitration. Most people don’t notice the opt-out clause or don’t understand it, so they ignore it. If the opt-out clause allows you that choice, just say "no" as soon as you buy the product, because once a dispute arises, it may be too late.

Unfortunately, not all arbitration clauses give consumers the right to opt out. In that case, the arbitration clause must be challenged in court. If the clause clear and meets other criteria established by case law, the arbitration agreement is often enforced.

On the other hand, some arbitration clauses are complete gibberish. When arbitration clauses are unconscionable or unintelligible, they may be deemed unenforceable, allowing consumers to retain their right to bring their claims in court. Last week, in a case called Davis v Car Capital Financial, et al, Kemnitzer, Barron & Krieg challenged just such a clause in a car title case and won. The trial court found that there was procedural unconscionability in the preprinted "adhesion" contract, and there was substantive unconscionability in that the bank had already taken advantage of its out-of-court remedy when it repossessed the plaintiff's car. Moreover, the AAA and BBB arbitration clauses were inconsistent and unfair. In its order denying Car Capital's motion to compel arbitration, the court noted, "Not only do BBB's discovery limits impair preparation for the hearing, the arbitrator has sole discretion to deny a party a continuance to respond to an ambush of harmful evidence presented at the hearing." Associate Kristin Kemnitzer successfully argued the motion.

One way companies prevent consumers from taking them to court for fraud and defective products is through arbitration. Forced arbitration clauses are hidden in the small print of many standard consumer contracts to prevent people from enforcing consumer protection laws. Arbitration is a private process that can be expensive, with little opportunity to get evidence from the other side, no jury, no judge and no right of appeal. Believe it or not, the arbitrator does not have to follow the facts or even the law, and yet the decision is binding. Statistics show that consumers win only a small percent of the time.

To make them appear fair, some companies are beginning to offer consumers the right to “opt-out” of the arbitration clause. Most people don’t notice the “opt-out” clause or don’t understand it, so they ignore it. Corporations are banking on consumer apathy. The opt-out clause allows you to “just say no” to arbitration. If you have the choice, opt out as soon as you purchase the goods; by the time a dispute arises it may be too late.

If the arbitration clause is clear and otherwise satisfies criteria established in the case law, it will probably be enforced.

However, some arbitration clauses are just gibberish. If an arbitration clause is unconscionable and incomprehensible, courts may refuse to compel arbitration, allowing the consumer to retain the right to bring claims in court. Kemnitzer, Barron & Krieg challenged just such a clause law week in a case involving a predatory car title loan, called Davis v Car Capital, et al. In its order denying Car Capital's motion to compel arbitration, the trial court found procedural unconscionability in the preprinted "adhesion" contract in which terms are hidden in a prolix form drafted by defendant. The trial court also found substantive unconscionability in that there were inconsistencies between the AAA and BBB forums, it was unclear which rules would apply, the cost was prohibitive and Car Capital had taken advantage of its own self-help remedy. In a rare glimpse into the arbitration process itself, the Court noted, "Not only do BBB's discovery limits impair preparation for the hearing, the arbitrator has sole discretion to deny a party a continuance to respond to an ambush of harmful evidence presented at the hearing." Associate Kristin Kemnitzer successfully argued the case.

Just in time for Halloween, one element of a recent settlement between American Express and the Consumer Financial Protection Bureau deals with compensation for an abuse known as "zombie debt." The term refers to a lenders' abusive practices in attempting to collect debt that is too old to be enforced. Usually that stale debt has been bundled and sold to down-stream debt collectors for a few cents on the dollar. At some point, the time runs out on the bank's right to collect the debt, so it expires. However abusive debt collectors try to "revive" the expired debt (hence the term "zombie") by talking the borrower or co-signor into making payments. Sometimes this is done under threats of credit damage or even false criminal charges.

A few weeks ago, the CFPB, which was set up when Congress passed the Dodd-Frank Act, announced a settlement with American Express and its affiliates, which remedied many deceptive practices alleged in connection with the company's credit card business. You can read the press release here

Among other aspects of the $85 million settlement, the agency reports that "Consumers who paid old debt in response to deceptive promises to report payment to credit bureaus will be reimbursed the money they paid plus interest."

It is not just credit card companies that use aggressive, and sometimes illegal, tactics to collect debt that is no longer due. Unlawful attempts to collect "zombie debt" are common in automotive lending as well, sometimes regarding a deficiency after a repossession that took place many years ago. The person demanding money may not even be the original lender. Before giving a check to a stranger, the borrower should get legal advice. "Zombie debt" may not be the apocalypse, but it can be a real nightmare.

Never heard of the company that is now sending you bills for your auto loan? You are not alone. It might be a debt buyer, or shell company shipping your payments to places like the Cayman Islands as a tax dodge or worse. Corporations that seek to remain anonymous have something to hide, and that something-to-hide is usually money. Unscrupulous companies use such shell games to avoid the transparency consumer protection laws seek to ensure. "Shell companies are a favorite tool of fraudsters," writes New York County District Attorney Cyrus R. Vance Jr. in a Reuters Op-Ed today.

That long document you signed in triplicate at the car dealer was probably a printed form retail installment sales contract, used to finance whatever part of the purchase price your down payment or trade-in did not cover. That contract was then assigned right away to a bank or other common lender. But after awhile, you might be getting bills from a company you don't even recognize. Sometimes the loan has been sold, or is being serviced by an anonymous affiliate. Sometimes, the financial institution has set up corporate shells that funnel the money to offshore accounts. Even large national dealer groups with household names are known to have held accounts in the Cayman Islands. Suddenly your loan and your good credit is in the hands of an entity you would never trust.

Consumers should look closely at their bills and if payment is being demanded from an entity other than the original assignee bank, there should be a clear explanation for the change. This is a good time to double-check the accounting on the invoice - is the new company charging the amount you agreed to pay, and is the balance being paid down as you do so? Of course, you should keep a complete file of every document relating to the loan and a record of all the payments made, when and to whom.

Meanwhile, Vance and many others urge Congress to regulate this shell game. The Incorporation Transparency and Law Enforcement Assistance Act, pending before the Senate Committee on Homeland Security and Governmental Affairs, is bipartisan legislation supported by a broad group of law enforcement agencies. It "would require states to collect information about the real people who own or control companies," he writes. That kind of regulation is long overdue. Corporate fraud is not just a crime, it has consequences for consumer justice as well.

Jobs, jobs, jobs! President Obama will be happy to hear that General Motors is bringing 1500 technology jobs back home to Michigan beginning in the next few months. After decades of hearing about American companies outsourcing jobs and ignoring American initiative, it is good news that an American icon of manufacturing is eliminating more than a thousand overseas jobs and bringing those labor opportunities back home.

This week, General Motors reports that it plans to hire 1,500 workers for a new software development center in Michigan. The Great Lakes State will be home to the second of four planned new software centers. Texas saw the first of the foursome open in Austin just last month.

GM's Chief Information Officer Randy Mott, who came to GM from his previous tenure at Hewlett Packard, believes the plan will save General Motors money in the form of more efficient and productive IT applications. "We're currently seeking the next generation of game-changers to help us usher in a new age of automotive innovation at GM," said GM Chief Information Officer Randy Mott.

The IT Innovation Centers are intended to serve GM's overall business strategy, helping it create and deliver technology services, improve company performance, reduce operation costs, and increase innovation.

This is good news for General Motors and good news for American jobs. The impressive turnaround at GM after the government bailout has been a source of pride for President Obama on the campaign trail this election cycle, particularly since Romney was against using federal funding to help GM back on its feet.