399 N.E.2d 567 | Ohio Ct. App. | 1978
This cause came on to be heard upon the appeal; the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County; the transcript of the proceedings; and the briefs and the arguments of counsel.
Two principal issues are raised by these consolidated appeals: first, whether prejudgment wage attachments are lawful in Ohio; and, second, whether proof of an intent to deceive is required before a supplier can be found to have committed a deceptive act or practice in violation of R. C.
The genesis of the action was the mailing by defendant, Sun Furniture and Appliance Company (Sun), to plaintiff, Remonia Thomas (Thomas), of two `'Notices of Court Action to Collect Debt" in the form prescribed by and fully set out in R. C.
Thomas brought an action against Sun pursuant to R. C.
The facts were not in dispute and the court determined the matter on the motions for summary judgment filed by each of the three parties. It held that: (1) Attachments of wages prior to judgment are no longer permitted; and (2) Sun was not in violation of R. C.
Thomas did not appeal. The Attorney General appealed that part of the decision holding that proof of an intent to deceive was necessary to establish a violation of R. C.
In support of its assignment of error, Sun argues that since its claim was less than $500 it is governed by county court procedure as set out in R. C. Chapter 1911.* Specifically, it points to R. C.
"A person seeking an order of attachment against personal earnings of a debtor, or an order in aid of execution against personal earnings of a debtor in an action upon a claim, mustfirst make a demand in writing as provided in section
Further R. C.
From a complete reading of R. C.
It should further be noted that in Sniadach v. Family FinanceCorp. (1969),
The Attorney General assigns two errors, the first of which alleges that the trial court erred in holding that before Sun could be found in violation of R. C.
"(A) No supplier shall commit a deceptive act or practice in connection with a consumer transaction. Such deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction."
From an analysis of the Consumer Sales Practices Act (R. C.
The conclusion that intent to deceive is not a necessary element of R. C.
Our conclusion is also supported by the history and purpose of consumer protection statutes. The Uniform Consumer Sales Practices Act, upon which the Ohio statute is modeled, states, in part, that the Act is to be construed to promote the following policies:
"(2) to protect consumers from suppliers who commit deceptive and unconscionable sales practices;
"(3) to encourage the development of fair consumer sales practices; * * *." 7A Uniform Laws Anno. 3, Uniform Consumer Sales Practices Act, Section 1 (1978).
The staff report of the Ohio Legislative Service Commission, which the legislature had before it when it considered and enacted the Ohio Consumer Sales Practices Act, states, in its preface:
"Deception is the classic consumer problem. From an early time the law has provided remedies for the buyer who has been deceived. As marketing and consumer services have become more complex, the private remedies of the common law, and traditional criminal actions, have become relatively ineffective as a means by which the consumer may protect himself, and government has intervened. * * *
"The word `fraud' connotes the common law concept in which one must prove that the seller intended to deceive the buyer. `Deception' is a much broader term in which the issue of the seller's intent is avoided."
Ohio Legislative Service Commission, Report No. 102, Fraud, Deception and Other Abuses in Consumer Sales and Services (1971).
In other words, the very reason for the enactment of the Consumer Sales Practices Act was to give the consumer protection from a supplier's deceptions which he lacked under the common law requirement of proof of an intent to deceive in order to establish fraud. To require proof of intent would *82 effectively emasculate the act and contradict its fundamental purpose.
Buttressing our conclusion is the interpretation given the Federal Trade Commission Act. The Uniform Consumer Sales Practices Act, Section 1 (7A Uniform Laws Anno. 3 [1978]) states that it is to be construed not inconsistently with the policies of the Federal Trade Commission Act. The analogous part of the FTC Act states: "* * * unfair or deceptive acts or practices in commerce are hereby declared unlawful." Title 15, U.S. Code, Section 45 (a) (1). The federal courts have uniformly held that an intent to deceive is not a required element of a violation of this statute. The likelihood of deception or the propensity to deceive is the criterion by which the act or practice is judged.Beneficial Corp. v. F.T.C. (C.A. 3, 1976),
As his second assignment of error, the Attorney General maintains that the trial court erred in holding that Sun had not committed a deceptive act in violation of R. C.
Each notice on its face could not but create in the mind of an average person the impression that a court of law had rendered a judgment against him and that unless the full amount demanded was paid within 15 days Sun could lawfully proceed to have his employer withhold money from his wages which in turn could cause the loss of his job. All of this was false and the notices were therefore deceptive as a matter of law and a violation of R. C.
In view of our determinations on the several assignments of error the decision of the trial court that prejudgment attachments of personal earnings are unlawful and its order enjoining Sun from seeking such attachments and from sending debtors the notices required by R. C.
Having found that the acts of defendant constituted a deceptive practice in violation of R. C.
Judgment affirmed inpart and reversedin part.
KEEFE, P. J., and BLACK, J., concur.
