August 1996

Vol.1 – No.1

Car leases violate federal and state law – a consumer who sued to get out of a 24 month car lease may be entitled to punitive damages and attorneys fees because he was not paid interest on his $500.00 security deposit. The U.S. District Court for the Northern District of Illinois, in denying a motion to dismiss a class action, found that the failure to pay interest violated the Uniform Commercial Code, the federal Consumer Leasing Act and a state consumer fraud statute. (CSBLG: “Lease It And Save” Page 275)

Lead paint rules effective September 6th – real estate sellers, brokers and landlords must disclose the presence of lead paint under EPA and HUD regulations effective September 6th for owners of more than four homes and December 6th for everyone else. They must disclose what is known about lead paint on the property, provide a pamphlet about the dangers of lead paint, include certain language in the sales contract or lease and allow ten days for buyers to obtain a lead inspection and cancel the contract based on the results. Knowingly violating the law will result in triple damages, attorneys fees and penalties of $10,000.00 per violation. All housing constructed before 1978 is covered except “0-bedroom” homes such as studio apartments and dormitories and housing for the elderly or persons with disabilities unless children under six years of age are expected to be residents. (HTSLL: “Lead Poisoning”, Page 99)

What’s New in Debtor/Creditor Law?

Proposed FDCPA Amendments – Senator Alan Simpson has introduced a bill to amend the Fair Debt Collection Practices Act (S. 1379). Senator Simpson noted the courts across the country have handed down contradictory interpretations of the Act, so much so that the Federal Trade Commission has asked Congress to clarify the law. “In addition, the bill gets rid of the $1,000 statutory damage `carrot’ that has, through its misuse, become a winning lottery ticket for some lawyers,” Simpson said. Under the bill, collectors would still be held responsible for any actual damages suffered.

Attorney’s fee award under FDCPA denied – The United States Court of Appeals for the Fifth Circuit ruled that plaintiffs are not entitled to their attorneys fees where they prove a mere technical violation of the FDCPA, with no award of actual or additional damage. The Court stated “our interpretation of this statute will require attorneys to look for more than a technical violation of the FDCPA before bringing suit and will deter suits brought only as a means of generating attorneys fees”.

Credit union liable under ECOA for requiring spouse to co-sign – When the plaintiff applied for an unsecured loan with his credit union, he was told that he would not be approved unless his wife co-signed the note. The couple sued the credit union alleging a violation of the Equal Credit Opportunity Act (ECOA) based upon the credit union’s representation that the wife had to co-sign the application to obtain approval of the loan. A Florida Appeals Court held the credit union liable for substantively violating the ECOA. The court noted that, although a creditor may request a co-signor in granting a loan, it cannot require that the spouse be an additional party. (CSBLG: “The ECOA”, Page 312)

What’s New in Divorce/Family Law?

Divorce settlement can’t be avoided by bankruptcy. A bankrupt husband was not allowed to discharge a divorce property settlement even though he did not currently have any disposable income to pay it off. It was not dischargeable because the husband probably will have enough disposable income to begin paying it off in the future ruled the U.S. Bankruptcy Court in North Dakota. (CSBLG: “Bankruptcy”, Page 312 and “Divorce Planning” Page 301)

What’s New in DWI/Traffic Law?

Passenger can be sued for drunk driving accident. A drunk driver’s passenger can be sued by a third party who is injured in an accident according to the Missouri Court of Appeals which joins the states of Illinois, Oklahoma, Oregon and West Virginia. The victim sued the driver’s three passengers for negligently encouraging him to speed, ignore traffic signs and drive drunk.

What’s New in E-Commerce Law?

Computer Fraud and Abuse Act is a federal statute used to combat “hacking” and “computer crime”. It prohibits users from gaining unauthorized access to, exceeding authorized access to and damaging, altering or destroying information on computers used by or for the government, financial institutions, credit card issuers and consumer reporting agencies and those used in interstate commerce.

The Electronic Communications Privacy Act prohibits a third-party from intercepting or disclosing electronic communications and unauthorized access to, and disclosure of, stored electronic communications including e-mail, voice mail, fax, cordless phone and cellular phone communications. There are both criminal and civil penalties for violations by the government or private citizens.

What’s New in Landlord/Tenant Law?

Tenant may be evicted for any illegal use. At the request of the District Attorney, a landlord brought eviction proceedings against his tenant who had been charged with trademark counterfeiting. The police recovered counterfeit trademark apparel and sportswear from the leased premises. The grounds for the eviction were that the tenant’s possession of counterfeit trademark items for sale was an “illegal trade, manufacture or business”, which violated the lease. The tenant’s defense was that the prohibition against illegal business was limited to only those businesses which are immoral or dangerous to neighboring tenants, such as, drug dealing, gambling or prostitution. The New York County Civil Court ruled that the law was intended to govern any illegal business, trade or manufacture regardless of the impact on the morals or welfare of the community. The law has also been applied to recover premises used for other illegal enterprises, including storage and distribution of fireworks, obscene materials, liquor and even for violations of tenement housing and multiple dwelling laws. (HTSLL: “Dealing With Drugs And Other Illegal Activities”, Page 64)

Landlords are liable for inadequate locks. Landlords are liable for failing to provide adequate locks to protect tenants from criminal attacks ruled the Oklahoma Supreme Court. A tenant sued her landlord for negligence after she was raped in her duplex by a man who gained entry through a side door. The duplex was in a high-crime neighborhood. The landlord refused to install deadbolt locks or allow the tenants to do so at their own expense. (HTSLL: “Civil Liability”, Page 92)

Insurance coverage. Landlords are not covered for suits for negligent security by tenants. The policy does not cover the suit by the tenant who was assaulted in her apartment because of the exclusion for claims based on “assault and battery” according to the New York Court of Appeals. The court had previously held that an “assault and battery” exclusion in a nightclub liability policy prevented coverage for a suit for “negligent hiring” of a security guard who shot a patron. (CSBLG: “Purpose of Insurance”, Page 297)

What’s New in Small Business Law?

Developer recovers $5.2 million for wetlands. The state must pay a developer $5.2 million in damages because he was not allowed to build a restaurant on a wetlands. This “taking” under the U.S. Constitution and the state constitution ruled the Michigan Court of Appeals. He was entitled to the recovery despite the fact that the “wetlands” comprised only 28 acres out of a 55 acre parcel and the developer owned or co-owned 3 other contiguous parcels with the entire property totaling to 82 acres. However, the Wisconsin Supreme Court refused to let a developer focus on a smaller portion of land to support his argument that there was no economic use for the property.

Negligent use of security guards. Although a business usually does not have the duty to hire security guards if there have not been any prior incidents of violent crime, where it hires a security guard anyway, it can be sued for negligent security regardless of whether there were any prior incidents according to the California Court of Appeals. The plaintiff was threatened by a group of youths when he walked into a restaurant. After a girl struck him, the restaurant security guard grabbed her and took her outside. However, he did not call the police or return to the restaurant until after the remaining youths had attacked the plaintiff. Although the restaurant may not have had a duty to hire a guard, once it did so, it had a duty to make sure that the guard was not negligent. The businesses who hire security guards are liable for failure to hire competent security guards. (“Employee”, Page 183)

How to avoid EPA sanctions. A business that conducts voluntary audits and discovers violations of environmental law can avoid EPA sanctions under a new EPA policy if: the violation is reported to the EPA within ten days; the problem is corrected and measures are taken to ensure that it won’t reoccur; and the “audit” meets the EPA’s specifications. (If it doesn’t meet the specifications, the violator can still get at 75 percent reduction in its fines). Sanctions cannot be avoided if: (1) the violation causes serious harm or seriously endangers human health or the environment; (2) the same or a similar violation has occurred at the same plant within the last three years; (3) the problem is part of a “pattern of violations” over the last five years; (4) company officials have been “consciously involved in or willfully blind to” the problem; (5) the violation was identified as part of a monitoring or sampling procedure required by law; (6) the company is already being inspected by the EPA or a local environmental agency; or (7) the company doesn’t report the violation until after it has been reported by a whistleblower or a third party. (CSBLG: “Environmental Reporting Requirements”, Page 215)

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

  • To communicate with you in plain language that is easy to understand.
  • To promptly return your telephone calls.
  • To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
  • To have your case personally handled by an attorney.
  • To keep you informed of the progress of your case at all times.
  • To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
  • To not handle your case in an “assembly line” fashion.
  • To accommodate the needs of you and your family during the handling of your case.
  • To vigorously protect your legal rights.
  • To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.

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