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The Consumer Finance Pantheon?

posted by Adam Levitin

In putting together a revised syllabus for my consumer finance course this semester, I was struck with how different this nascent field is from established courses like Contracts.  No matter what Contracts casebook one uses to teach, there are a bunch of well-established chestnuts that everyone knows:  Hadley v. Baxendale, for example, or Williams v. Walker-Thomas Furniture, Raffles v. Wichelhaus, Frigaliment, Lucy Lady Duff Gordon, Hawkins v. McGee, or Jacobs & Young v. Kent (and one could go on and on).  It's hard to say the same for Consumer Finance; indeed, I've got very few cases on my syllabus. 

I'm curious what Credit Slips readers think are the leading cases in the consumer finance area.

I recognize that this is a tricky question, as what fits into "consumer finance" is an open question, but I have in mind the field broadly defined including state and federal law dealing with credit, payments, insurance, and debt restructuring (other than bankruptcy). 

Here's what comes to mind immediately for me:

  • Williams v. Walker-Thomas (unconscionability)
  • Marquette Nat'l Bank v. First of Omaha (Nat'l Bank Act preemption)
  • Watters v. Wachovia (OCC preemption for nat'l bank operating subs)
  • Smiley v. Citibank (OCC preemption for late fees)
  • AT&T v. Concepcion (availability of class actions)
  • Heintz v. Jenkins (FDCPA)
  • Swarb v. Lenox (confession of judgments)
  • Lynch v. Household Finance (pre-judgment garnishment)
  • Fuentes v. Shevin (repos under writ of replevin)

It's a noticeably short list, in my mind, and the 1970s Supreme Court cases at the end have a distinctly dated feel to them both because of the transactions and because of the regulatory changes since. (I've added some other illustrative cases to my syllabus, but they're hardly definitive or game-changing decisions.) It may well be that there are just cases I'm not familiar with. But it also might be a function of how consumer finance law operates--private litigation is typically done via class action and those suits, when they survive initial motions to dismiss, etc., usually result in settlements, rather than reported opinions. Yes, there might have to be a class cert. opinion or an opinion approving the settlement, but they tend not to be riveting on points of law. Similarly, public enforcement usually results in settlements (with no wrongdoing admitted) rather than reported decisions. But I'm eager to hear what cases others think of as the "classics" in this area.  

Comments

I teach Marquette and Smiley as two parts of a trio of judicial deregulation cases. The third is the 3rd Circuit decision in Smith v. Fidelity, a case that extended preemption of state mortgage usury laws to cash-out refinance loans, helping to launch the subprime mortgage industry. There is also Judge Posner's decision in Emery v American General Finance, about the complexity of (relatively simple) loan terms and the failure of disclosure.

Mourning v. Family Publications Service, Inc., 411 U.S. 356 (1973 (TILA: validity of Four Installments Rule and power of FRB to promulgate Reg Z)

In the mortgage area, I like the MA SJC decision in Commonwealth v. Fremont and Associates v. Troup.

Nice Article Adam Levitin. Keep It Good job

Prof. Levitin,
Will you be filing a supplemental brief in Eaton v FNMA?

First National Bank of Mobile D/B/A Bankamericard/Visa, Plaintiff-Appellant, v Harold Eugene Roddenberry and Jayne Hettie Roddenberry, Defendents-Appellees.,701 F.2d 927 (11th Cir.1983)

A fascinating and important case from a TILA/usury/debt collection perspective is Pollice v. National Tax Funding, 225 F.3d 379 (CA3 2000).

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