Consumer Law

I'll huff and I'll puff and I'll take your house away

By Rebecca Tushnet

In court, Countrywide says its ads are ?puffery?

For the basic idea behind this MSNBC story, note the subhead: ?Defending lawsuit, mortgage company mocks loan modification assurances? (emphasis added).

In marketing, advertising and testimony before Congress, Countrywide Home Loans has said repeatedly that it is working hard to modify the mortgages of financially strapped borrowers caught up in the subprime meltdown. But in a New Hampshire court, attorneys for the lending giant are singing a different tune, describing such assurances as ?mere commercial puffery.?

Saying the modification offers are ?only Countrywide?s vague advertisements,? attorneys for the lender are asking the court to throw out a lawsuit alleging breach of good faith, fraud, negligence and misrepresentation, which was filed on behalf of a family that was refused a loan modification by the California-based company.

The ads and the congressional testimony said the same things??we can help you!? to quote a Countrywide website. The ads are commercial speech; what about the congressional testimony? (I actually think the answer to that question isn?t that important, because we do have the ads. But the testimony may bear on the puffery defense; even if a Representative is not a reasonable person, Countrywide?s statements in multiple venues might affect whether a reasonable person would perceive that a factual claim had been made.)

Via David Welkowitz

Full post as published by 43(B)log on January 16, 2009 (boomark / email).