Title 9: Commerce and Trade
Chapter 63: Consumer Fraud
Vermont Fair Debt Collection Practices Act § 2451. Purpose
The purpose of this chapter is to complement the enforcement of federal statutes and decisions governing unfair methods of competition and unfair or deceptive acts or practices in order to protect the public, and to encourage fair and honest competition.
Vermont Fair Debt Collection Practices Act § 2451a. Definitions
For the purposes of this chapter:
(a) “Consumer” means any person who purchases, leases, contracts for, or otherwise agrees to pay consideration for goods or services not for resale in the ordinary course of his or her trade or business but for his or her use or benefit or the use or benefit of a member of his or her household, or in connection with the operation of his or her household or a farm whether or not the farm is conducted as a trade or business, or a person who purchases, leases, contracts for, or otherwise agrees to pay consideration for goods or services not for resale in the ordinary course of his or her trade or business but for the use or benefit of his or her business or in connection with the operation of his or her business.
(b) “Goods” or “services” shall include any objects, wares, goods, commodities, work, labor, intangibles, courses of instruction or training, securities, bonds, debentures, stocks, real estate, or other property or services of any kind. The term also includes bottled liquified petroleum (LP or propane) gas.
(c) “Seller” means a person regularly and principally engaged in a business of selling goods or services to consumers.
(d) “Home solicitation sale” means the sale or lease, or the offer for sale or lease, of goods or services with a purchase price of $5.00 or more, whether under single or multiple contracts, where the sale, lease, or offer thereof is either personally solicited or consummated by a seller at the residence or place of business or employment of the consumer, or at a seller’s transient quarters, or solicited or consummated by a seller wholly or in part by telephone with a consumer at the residence or place of business or employment of the consumer. Transient quarters includes hotel or motel rooms, or any other place utilized as a temporary business location. The term “home solicitation sale” does not include a transaction:
(1) made pursuant to prior negotiations in the course of a visit by the consumer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis; or
(2) in which the consumer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the consumer’s personal property. If in the course of such a visit, the seller sells the consumer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion;
(3) conducted and consummated entirely by mail; and without any other contact between the consumer and the seller prior to delivery of the goods or performance of the services;
(4) with a purchase price of under $25.00 where the consumer is not required to sign any contract, receipt, sales ticket, evidence of indebtedness or other writing; and the goods, services or merchandise purchased are capable of delivery or performance at one time;
(5) pertaining to the sale or rental of real property, to the sale of insurance, to the sale of securities by a broker dealer registered with the Securities and Exchange Commission or to the sale of commodities by and any person registered with the Commodity Futures Trading Commission;
(6) where, in the case of goods, the buyer may at any time:
(A)(i) cancel the order prior to delivery of the goods and receive a full refund for any monies paid; or
(ii) refuse to accept the goods when delivered, without incurring any obligation to pay for them and receive a full refund for any monies paid; or
(iii) return the goods to the seller and receive a full refund for any monies paid, and;
(B) the buyer’s right to cancel the order or return the goods without obligation or charge at any time and receive a full refund for any monies paid is clearly and unmistakably set forth on the face or reverse side of the sales ticket, and;
(C) the goods or merchandise purchased under an agreement meeting the requirements specified in subdivisions (A) and (B) of this subdivision are capable of delivery at one time;
(7) solicited or consummated wholly or in part by telephone where the seller offers a full refund and right of cancellation for at least ten days after receipt of the goods or services, and a full refund within 30 days of return of the goods or cancellation of the services or under terms no more restrictive than those set forth in subsections 2454(a), (c) and (d) of this chapter, and the right of refund and cancellation is conspicuously disclosed with the goods or services;
(8) solicited or consummated wholly or in part by a federally-insured depository institution or its subsidiary, affiliate, or parent organizations, or by a public utility regulated by the Federal Communications Commission or the Vermont public service board.
(9) in response to an order placed by a farmer for farm-related goods or services, whether in person, by telephone, or otherwise, and the farmer has a preexisting open end credit plan with the seller.
(e) “Business day” means any calendar day except Saturday, Sunday or any day classified as a holiday under section 371 of Title 1.
(f) “Purchase price” means the total price paid or to be paid for the consumer goods or services, including all interest and service charges.
(g) “Lessor” means a person engaged in a business of leasing goods to consumers.
Vermont Fair Debt Collection Practices Act § 2452. Limitation
Nothing in this chapter shall apply to the owner or publisher of a newspaper, magazine, publication or printed matter wherein an advertisement or offer to sell appears, or to the owner or operator of a radio or television station which disseminates an advertisement or offer to sell, when the owner, publisher or operator has no knowledge of the fraudulent intent, design or purpose of the advertiser or operator.
Vermont Fair Debt Collection Practices Act § 2453. Practices prohibited; antitrust and consumer fraud
(a) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.
(b) It is the intent of the legislature that in construing subsection (a) of this section, the courts of this state will be guided by the construction of similar terms contained in Section 5(a)(1) of the Federal Trade Commission Act as from time to time amended by the Federal Trade Commission and the courts of the United States.
(c) The attorney general shall make rules and regulations, when necessary and proper to carry out the purposes of this chapter, relating to unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce. The rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the federal courts interpreting the Federal Trade Commission Act.
(d) Violation of a rule or regulation as made by the attorney general is prima facie proof of the commission of an unfair or deceptive act in commerce.
(e) The provisions of subsections (a), (c) and (d) of this section shall also be applicable to real estate transactions.
Vermont Fair Debt Collection Practices Act § 2454. Purchase contracts; rescission
(a) Consumer’s or other obligor’s right to cancel
(1) Except as provided in subdivision (5) of this subsection, in addition to any right otherwise to revoke an offer, the consumer or any other person obligated for any part of the purchase price may cancel a home solicitation sale until midnight of the third business day after the day on which the consumer has signed an agreement or offer to purchase relating to such sale, or has otherwise agreed to buy consumer goods or services from the seller.
(2) Cancellation occurs when notice of cancellation is given to the seller.
(3) Notice of cancellation, if given by mail, shall be deemed given when deposited in a mailbox properly addressed and postage prepaid.
(4) Notice of cancellation need not take the form prescribed and shall be sufficient if it indicates the intention of the consumer not to be bound.
(5) A home solicitation sale may not be cancelled if the consumer has requested the seller to provide goods or services without delay because of an emergency, and
(A) the seller in good faith has begun substantial performance of the contract before the notice of cancellation has been given, and
(B) in the case of goods, the goods cannot be returned to the seller in substantially the same condition as when received by the consumer, and
(C) the consumer’s request is both handwritten and signed by the consumer.
(b) Disclosure obligations
(1) In every home solicitation sale, the seller shall furnish the consumer with a fully completed receipt or copy of any contract pertaining to such sale at the time the consumer signs an agreement or offer to purchase relating to such sale, or otherwise agrees to buy consumer goods or services from the seller. Such receipt or contract copy shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the consumer or on the front page of the receipt if a contract is not used and in boldface type of a minimum size of ten points, a statement in substantially the following form:
You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation for an explanation of this right.
(2) In a home solicitation sale, unless a consumer requests the seller to provide goods or services without delay in an emergency, the seller shall furnish a notice of cancellation to the consumer at the time he signs an agreement or offer to purchase relating to such sale or otherwise agrees to buy consumer goods or services from the seller, which notice shall be attached to the contract or receipt and easily detachable.
(A) The notice of cancellation shall contain the following information and statements, printed in not less than ten point boldface type:
NOTICE OF CANCELLATION
(enter date of transaction)
You may cancel this transaction, without any penalty or obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram, to
………………………………………………… at ……………….……………………………………………
(name of seller) (address of seller’s place of business)
not later than midnight of …………………………………………………………………………
I hereby cancel this transaction.
(B) Before furnishing copies of the “Notice of Cancellation” to the buyer, the seller shall complete both copies by entering the name of the seller, the address of the seller’s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation.
(C) The seller shall leave the “Notice of Cancellation” with the consumer.
(D) In addition to the written notice of cancellation the seller shall orally inform the buyer of his right to cancel at the time of the transaction.
(3) Until the seller has complied with this subsection, the consumer or any other person obligated for any part of the purchase price may cancel the home solicitation sale by notifying the seller in any manner and by any means of his intention to cancel. The cancellation period of three business days shall begin to run from the time the seller complies with this subsection.
(c) Restoration of payments
(1) Within ten days after a home solicitation sale has been cancelled or an offer to purchase revoked, the seller shall tender to the consumer any payments made by the consumer and any note or other evidence of indebtedness, and take any action necessary or appropriate to terminate promptly any security interest in the transaction, except as provided in subdivision (3) of this subsection.
(2) If payment includes goods traded in, the goods shall be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this subsection, the consumer may elect to recover an amount equal to the trade-in allowance stated in the agreement.
(3) Until the seller has complied with this subsection the consumer may retain possession of goods delivered to him by the seller and shall have a lien on the goods in his possession or control for any recovery to which he may be entitled.
(d) Duties of seller and consumer
(1) Within ten days after a home solicitation sale has been cancelled or an offer to purchase revoked, the seller shall either demand possession of any goods delivered by the seller pursuant to the sale or instruct the consumer regarding the return shipment of the goods at the seller’s expense and risk.
(2) If the seller does not give instructions regarding the return shipment of the goods, or if the consumer does not comply with any such instructions given, the seller must pick up such goods within twenty days after a home solicitation sale has been cancelled.
(3) If the seller does not act within the time periods established in subdivisions (1) and (2) of this subsection, the goods shall become the property of the consumer without obligation to pay for them.
(4) Upon demand, the consumer shall tender to the seller any goods delivered by the seller pursuant to the sale but need not tender at any place other than his residence.
(5) If the consumer agrees to return the goods to the seller and fails to do so, then he shall remain liable for performance of all obligations under the contract.
(6) The consumer shall take reasonable care of the goods in his possession both before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller’s risk.
(7) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller shall be entitled to no compensation therefor.
(e) If the home solicitation sale is principally negotiated in a language other than English, then all of the disclosures required by this section shall be given in that language.
(f) If the consumer is unable to write in his own handwriting, then any of the statements required to be written by him under this section shall be handwritten by a member of the consumer’s household at the request of the consumer. If there is no other member of the consumer’s household, then such statements must be written by the seller, at the request of the consumer, and the effect of such statements shall be orally explained to the consumer by the seller.
(g) Use of the cancellation provision provided for in this section shall not prevent any other action being taken under this chapter or otherwise against such seller.
(h) A violation of any of the provisions of this section shall be considered an unfair act in commerce within the meaning of subsection 2453(a) of this title.
Vermont Fair Debt Collection Practices Act § 2455. Defenses
The holder of a promissory note or instrument or other evidence of indebtedness of a consumer delivered in connection with a contract shall take or hold that note, instrument or evidence subject to all defenses of such consumer which would be available to the consumer in an action on a simple contract, and all rights available to him under this chapter.
Vermont Fair Debt Collection Practices Act § 2456. Confession of judgment
Any agreement of a consumer in a contract that a power of attorney is given to confess judgment, or an assignment of wages is given, or any agreement of similar effect, is void and of no force and effect on any party.
Vermont Fair Debt Collection Practices Act § 2457. Evidence of fraud
The failure to sell any goods or services in the manner and of the nature advertised or offered, or the refusal or inability to sell any goods or services at the price advertised or offered or in accordance with other terms or conditions of the advertisement or offer, creates a rebuttable presumption of an intent to violate the provisions of this chapter. No actual damage to any person need be alleged or proven for an action to lie under this chapter.
Vermont Fair Debt Collection Practices Act § 2458. Restraining prohibited acts
(a) Whenever the attorney general or a state’s attorney has reason to believe that any person is using or is about to use any method, act or practice declared by section 2453 of this title to be unlawful, or has reason to believe that any person has violated any assurance of discontinuance entered into pursuant to section 2459 of this title, and that proceedings would be in the public interest, the attorney general, or a state’s attorney if authorized to proceed by the attorney general, may bring an action in the name of the state against such person to restrain by temporary or permanent injunction the use of such method, act or practice or to dissolve a domestic corporation or revoke the certificate of authority granted a foreign corporation. The action may be brought in the superior court of the county in which such person resides, has a place of business or is doing business. Said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter, such injunctions to be issued without bonds, and so to dissolve, or revoke the certificate of authority of, a corporation.
(b) In addition to the foregoing, the attorney general or a state’s attorney may request and the court is authorized to render any other temporary or permanent relief, or both, as may be in the public interest including, but not limited to:
(1) the imposition of a civil penalty of not more than $10,000.00 for each violation;
(2) an order for restitution of cash or goods on behalf of a consumer or a class of consumers similarly situated;
(3) an order requiring reimbursement to the state of Vermont for the reasonable value of its services and its expenses in investigating and prosecuting the action;
(4) amounts other than consumer restitution recovered by the attorney general or department of state’s attorneys under this chapter, subject to appropriation each fiscal year, shall be available to the attorney general or department of state’s attorneys, respectively to offset the costs of providing legal services.
(c) Whenever a state’s attorney brings an action pursuant to this section, a copy of any pleadings shall be served on the attorney general pursuant to Rule 5 of the Vermont Rules of Civil Procedure. Failure to comply with this provision shall not affect the validity of the proceedings commenced under this section.
Vermont Fair Debt Collection Practices Act § 2459. Assurance of discontinuance
(a) In any case where the attorney general or a state’s attorney has authority to institute an action or proceeding under section 2458 of this title, in lieu thereof he may accept an assurance of discontinuance of any method, act or practice in violation of this chapter from any person alleged to be engaged or to have been engaged in such method, act or practice. Such assurance may include a stipulation for affirmative action by such person, payment of a civil forfeiture and the costs of investigation, or of an amount to be held in escrow pending the outcome of an action or as restitution to aggrieved consumers, or any of the above. Any such assurance of discontinuance shall be in writing and be filed with the Washington superior court. Evidence of a violation of such assurance shall be prima facie proof of violation of section 2453 of this title, or of any rule of regulation made pursuant to section 2453 of this title in any action or proceeding thereafter brought by the attorney general or a state’s attorn.
(b) No assurance of discontinuance may be accepted by a state’s attorney without the approval of the attorney general who shall indicate his approval by countersigning any assurance before it may become effective.
Vermont Fair Debt Collection Practices Act § 2460. Civil investigation
(a) The attorney general or a state’s attorney whenever he or she has reason to believe any person to be or to have been in violation of section 2453 of this title, or of any rule or regulation made pursuant to section 2453 of this title, may examine or cause to be examined by any agent or representative designated by him or her for that purpose, any books, records, papers, memoranda and physical objects of whatever nature bearing upon each alleged violation, and may demand written responses under oath to questions bearing upon each alleged violation. The attorney general or state’s attorney may require the attendance of such person or of any other person having knowledge in the premises in the county where such person resides or has a place of business or in Washington County if such person is a nonresident or has no place of business within the state, and may take testimony and require proof material for his or her information, and may administer oaths or take acknowledgment in respect of any book, record, paper or memorandum. The attorney general or a state’s attorney shall serve notice of the time, place and cause of such examination or attendance, or notice of the cause of the demand for written responses, at least ten days prior to the date of such examination, personally or by certified mail, upon such person at his or her principal place of business, or, if such place is not known, to his or her last known address. Any book, record, paper, memorandum or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of this state for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general or a state’s attorney or another law enforcement officer engaged in legitimate law enforcement activities, unless with the consent of the person producing the same. This subsection (a) shall not be applicable to any criminal investigation or prosecution brought under the laws of this or any state.
(b) A person upon whom a notice is served pursuant to the provisions of this section shall comply with the terms thereof unless otherwise provided by the order of a court of this state. Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigation under this section, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any documentary material in the possession, custody or control of any person subject of any such notice, or mistakes or conceals any information, shall be fined not more than $5,000.00.
(c) Whenever any person fails to comply with any notice served upon him under this section or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the attorney general or a state’s attorney may file, in the superior court in which such person resides or has his principal place of business or in Washington county if such person is a nonresident or has no principal place of business in this state, and serve upon such person, a petition for an order of such court for the enforcement of this section. Whenever any petition is filed under this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of this section. Any disobedience of any order entered under this section by any court shall be punished as a contempt thereof.
Vermont Fair Debt Collection Practices Act § 2461. Civil penalty
(a) Any person who violates the terms of an injunction issued under section 2458 of this title shall forfeit and pay to the state a civil penalty of not more than $10,000.00 for each violation. For the purposes of this section, the court issuing such injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the attorney general or a state’s attorney acting in the name of the state may petition for recovery of such civil penalty.
(b) Any consumer who contracts for goods or services in reliance upon false or fraudulent representations or practices prohibited by section 2453 of this title, or who sustains damages or injury as a result of any false or fraudulent representations or practices prohibited by section 2453 of this title, or prohibited by any rule or regulation made pursuant to section 2453 of this title may sue for appropriate equitable relief and may sue and recover from the seller, solicitor or other violator the amount of his damages, or the consideration or the value of the consideration given by the consumer, reasonable attorney’s fees, and exemplary damages not exceeding three times the value of the consideration given by the consumer. Any language, written or oral, used by a seller or solicitor, which attempts to exclude or modify recovery of the penalty or reasonable attorney’s fees shall be unenforceable.
(c) Any person alleged to have violated the terms of subsection (b) of this section shall be entitled to a trial by jury, unless waived according to law.