With the increase in foul acts done by major national banks, car dealerships, construction companies, and more, comes the need to protect North Carolina consumers from such acts. As a native North Carolinian, Attorney Hastings and the law firm proudly fights to restore consumer rights when lost. He's handled various claims involving unfair and deceptive trading, fraud, and intentional conduct aimed to distress and overpower the average consumer.
Unfair and Deceptive Trade Practice: N.C. Gen. Stat. § 75-1.1 provides individuals in North Carolina a private cause of action against businesses that engage in unfair and deceptive trade practices. In order to allege a prima facie claim under the statute, the plaintiff must show (1) the defendant engaged in an unfair or deceptive trade practice (2) in or affecting commerce that (3) was the proximate cause of the plaintiff’s injury. N.C. Gen. Stat. § 75-1.1.
Defendant’s conduct proximately caused Plaintiff’s injury. The plaintiff must principally provide sufficient evidence to support the claim that plaintiff suffered an actual injury as a result of the defendant’s conduct. Coley v. Champion Home Builders Co, 162 N.C. App. at 166, 590 S.E.2d at 22. A plaintiff can meet the actual injury requirement where there is evidence plaintiff lost the use of specific and unique property, lost any appreciated value of property, and/or incurred any other element of damage shown in plaintiff’s evidence, as long as the defendant’s conduct is the proximate cause of those injuries. Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, Charlotte Branch., 80 F.3d 895, 903 (4th Cir. 1996). If the plaintiff’s claim of unfair and deceptive trade practices arises due to a defendant’s misrepresentations, plaintiff must also allege reliance upon the misrepresentation in order to prove proximate causation. Tucker v. Blvd. At Piper Glen LLC, 150 N.C. App. 150, 154, 564 S.E.2d 248, 251 (2002).
Defendant’s conduct must be in or affecting commerce. After the plaintiff satisfies that initial burden, the court will next look to whether the defendant’s actions were in or affecting commerce. In re Brokers, Inc. 396 B.R. 146, 161 (M.D.N.C. 2008). In order to classify the activity as commerce, the activity needs only to “surround or affect a sale;” in that aim, a plaintiff can demonstrate the conduct was in or affected commerce where the parties “engaged in an activity involving an exchange of some type in which a participant could be characterized as a seller.” Atlantic Purchasers, Inc., v. Aircraft Sales, Inc., 705 F.2d 712, 716 (4th Cir. 1983).
Defendant’s conduct must be an unfair and deceptive trade practice.When the court is satisfied that defendant’s actions were in or affecting commerce, it’s next task is to consider if that conduct was an unfair or deceptive trade practice. In re Brokers, Inc., 396 B.R. 146, 161 (M.D.N.C. 2008). A party is guilty of an unfair act or practice when it engages in conduct that amounts to an inequitable assertion of its power or position. Walker v. Sloan, 137 N.C. App. 387, 394, 529 S.E.2d 236, 243 (2000). A party is guilty of a deceptive act when the act has the tendency and capacity to mislead or creates the likelihood of deception. Walker v. Fleetwood Homes of N.C., Inc., 362 N.C. 63, 72, 653 S.E.2d 393, 399 (2007). An act must only be unfair or deceptive, but not both, in order to qualify as one the plaintiff can bring under the statutory cause of action. Evidence that the act or practice impacts the marketplace or affects the average consumer weighs strongly in favor of the court finding the statute applies to the defendant’s conduct. Lincoln v. Bueche, 166 N.C. App. 150, 158, 601 S.E.2d 237, 244 (2004).
False Statements, Misrepresentations, and Lies satisfy unfair and deceptive trade practices.For example, a seller’s intentional false statements upon which the buyer reasonably relied resulted in an unfair and deceptive trade practice. Torrence v. AS&L Motors, Ltd., 119 N.C. App. 552, 459 S.E.2d 67 (1995) (holding that when a used car salesman told potential buyers that a car was not in an accident when the seller knew the opposite was true, and the buyers relied on that information to purchase the car, it constituted an unfair and deceptive trade practice). Further, a contractor’s false misrepresentations in regards to the feasibility of constructing a deck in accord with the applicable dimensions purchased resulted in an unfair and deceptive act when the contractor knew it was impossible to build the deck with the dimensions the buyers expected; it was sufficient for buyers to form those expectations based on the vendor’s salesmen, sales brochures, and blue prints. Lapierre v. Samco Dev. Corp., 103 N.C. App. 551, 406 S.E.2d 646 (1991). In addition, while an ordinary breach of contract does not satisfy the standard for an unfair and deceptive trade practice, when the defendant aggravates the breach with lies and manipulation through the course of its conduct, the act satisfies the burden for an unfair and deceptive trade practice. Garlock v. Henson, 112 N.C. App. 243, 435 S.E.2d 114 (1993).
Treble Damages and Attorney’s Fees: North Carolina’s unfair and deceptive trade practices statute provides plaintiff the right to recover treble its reasonably calculated damages. Castle McCullough, Inc., v. Freedman, 169 N.C. App. 497, 502, 610 S.E.2d 416, 421 (2005). Treble damages means triple the amount of actual damages and it is not subject to judicial review. Marshall v. Miller, 302 N.C. 539, 547, 276 S.E.2d 397,l 402 (1981). In addition, the prevailing attorney can collect reasonable attorney’s fees in the event the judge finds that the defendant willfully engaged in the deceptive conduct and failed to provide a satisfying reason for why the defendant failed to fully resolve the matter outside of court. N.C. Gen. Stat. § 75-16.1.
North Carolina’s Debt Collection Laws: There are two primary acts that protect North Carolina debtors from predatory, coercive, and unfair tactics lenders might employ in the process of collecting their debt. Chapter 58 of the North Carolina General Statutes is the North Carolina Collection Agency Act, or NCCAA. Chapter 75 § 50 is known as the North Carolina Debt Collection Act. The provisions in the North Carolina Debt Collection Act are closely related to the consumer protection principles found in the Unfair and Deceptive Trade Practices Act, also found in Chapter 75 of the North Carolina General Statutes. Under § 58-70-130, a plaintiff can recover damages of no more than $4,000 per violation and a defendant’s failure to engage settlement in a reasonable manner can also give rise to the defendant’s requirement to pay attorney’s fees under N.C. Gen. Stat. § 75-16. The ‘per violation’ language in § 58-70-130 provides a litigation tool for plaintiffs to carefully analyze their claims for avenues of relief related to specific instances of the defendant’s violations.