Fluent Essays

.Rough draft and the annotated notes are attached.  MUST USE BLUEBOOK CITATION.    Make sure the brief is: · 3 to 5 pages in length. · Does not include a cover page or running heads.  · Single-spaced, Times New Roman, 12-point font  · Uses the same four rule explanation paragraphs as your memo. However, make sure to incorporate the feedback provided by your professor in the memo. o Two rule explanation paragraphs in the first section of the argument.  o Two rule explanation paragraphs in the second section of the argument.  · Includes two rule application paragraphs o One rule application paragraph at the end of the first section of the argument.  o One rule application paragraph at the end of the second section of the argument.  · Cite cases using the Bluebook in-text citation method  · Only the four assigned cases should be used – no outside sources.  · Incorporates all of the feedback provided by your professor in the Brief: Rough Draft Assignment. To: Susan Patrick, Esq. From: Jane Doe Date: July 30, 2021 RE: Andrew and Allison Jones Introduction This brief is regarding a signed agreement between Advantage Housewares and Andrew and Allison Jones, and a potential allegation of unconscionability for a rent-to-own purchase of a washer and dryer unit. Enforcing the agreement contract against the Joneses would be considered as unconscionable due to the evident gross disparity, overreaching and oppressive influences therein. The Joneses learned in their later due diligence that comparable washer and dryer units, were priced four-times lower. Question Presented According to laws of Virginia, what is the “two-prong test” that is applied to establish if an agreement is unconscionable? Is unconscionability a viable defense for the Joneses in this action? Answer For an agreement to be considered as unconscionable, the Virginia courts will apply the two-pronged test which consist of; gross disparity and overreaching and oppressive influences. First test, the requirement of gross disparity is when there a vast difference in price or monetary value of said assets such as property or other that is received by a party or parties. Second test, the requirement of overreaching or oppressive influences is a presence of fraud, and its proneness to mislead, coerce or even threaten a party to do something that will provide an advantage for the other. There is evidence that the unconscionability defense is a viable defense based on the evidence of the gross disparity regarding the vast difference in the price of the unit in comparison to the normal market price. Also, the overreaching and oppressive influences with the sales associate knowing and understanding the situation that prompted the purchase by the Joneses and their having no other alternatives. An agreement or transaction in this case, is deemed unconscionable if no one under reasonable conditions who is truthful and equitable would offer or accept. Statement of Facts The Joneses found themselves in the unfortunate circumstances a failed washer and dryer purchase a replacement washer and dryer unit as they resided in a rural community without access to a laundromat. The Joneses were experiencing financial hardship at the unit stopped working and due to credit challenges, they were unable to secure lines of credit or other standard financing. With urgency, the Joneses contacted a sales representative named Mr. Plyburn, with Advantage Housewares and discussed what they were shopping for, their current credit and financial encumbrances. Having no other known viable options available to them, the Joneses agreed to a 12-month payment plan of $250.00 per month. The Joneses initially had no problem with the plan and was timely in their payments as scheduled until the 4th payment in the agreement. Andrew’s mother abruptly passed away, while in concert Allison’s father became unwell. The responsibility fell solely to Andrew and Allison to manage the funeral arrangements as well as caring for their elderly father who was in failing health, hence the reason the 4th payment was an unfortunate and unplanned oversight. Once the missed payment was realized, Allison promptly made that past due and upcoming payment as well to cover both payments for month four and five. It was two-weeks later, and Advantage Housewares sent a demand letter to the Joneses that stated that due to the missed payment, they owe an exorbitant late fee of $1,000 and Advantage has now called the agreement to be paid in full the amount of $2750 that includes the remaining payment and late fee. The Joneses were taken aback upon learning of this egregious and unreasonable clause in the agreement they were unaware of. Shortly afterwards, Andrew decided to research comparable units currently on the market and found prices that ranged between $1000 to $1250 at your neighborhood Home Depot and Lowes. Already financially strapped for cash and the inability to obtain any traditional financing options, their out of pocket cost will be around $4000 to Advantage Homewares. Adding insult to injury further, one week later after the demand letter for payment in full, the Joneses received notification that an action has been file against them by Advantage to enforce the agreement or face repossession of the unit. Discussion The Joneses faced a difficulty when their current washer and dryer unit had a mechanical failure, and due to their rural setting, there was no laundromats or washaterias in the vicinity. Out of desperation and need, the Joneses disclosed unwittingly their credit and financial challenges to Advantage Homewares. 1. Gross Disparity In Derby v. Derby “gross disparity in the value exchanged is a significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable.” Derby v. Derby, 8 VA. App. 28, 378 S.E.2d 74, 79 (1989) Although the Joneses disclosed to the sales associate at Advantage Housewares their financial challenges and lack of creditworthiness, straight-away Advantage Homewares seized the opportunity to draft an agreement that would egregiously exceed the said unit over $3000 the market price. Monthly payments were timely until the oversight of the missed payment due to the death in their family and another parent’s failing health, which was the reason for the missed payment, that was swiftly addressed prior to any communication from Advantage, bring their account to current status. Reviewing the Findings of Derby v. Derby, “gross disparity in the value exchanged is a significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable.” Derby v. Derby, 8 VA. App. 28, 378 S.E.2d 74, 79 (1989) Again, Derby v. Derby, “the court’s conclusion of unconscionability was supported by findings of additional factors. There is evidence of concealment, misrepresentation and undue advantage.” Derby v. Derby, 31, 378 S.E.2d 74 (1989) 2. Overreaching or Oppressive Influences Again, in Derby v. Derby, “the intrinsic fairness of the terms of agreement in relation to all attendant circumstances, including the relationship and duties between the parties.” Derby v. Derby, 8 VA. App. 28, 378 S.E.2d 74 (1989) In Galloway v. Galloway, “A significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable.” Galloway v. Galloway, 47 VA. App. 83, 622 S.E.2d 267 (2005) Due to their urgent need for the washer and dryer unit, the Joneses felt wholeheartedly compelled to agree to the outrageous terms, because they had no other available avenues to make the purchase, and armed with that knowledge Advantage Housewares exploited their circumstance to the fullest. It is evident that the Joneses was ignorant regarding the terms and covenants of the agreement, and how it worked. It is unreasonable to expect anyone to accept terms that result in a $1000 late fee for one payment, hence providing no credence in the Joneses having a clear understanding of the agreement whatsoever. The Joneses acted with a bias for urgency to expeditiously pay what was not only past due, but also an early payment to get back on track, considering all that was happening in their personal lives. Conclusion Based on the preponderance of the evidence regarding the capacity of the Joneses from their emotional anguish, financial struggles, basic need for resources and services such as the ability to launder their clothing, to being bereaved. It is clear, that the sequence of events found them in a place of disadvantage and in the same vein easy prey to unscrupulous business practices. The significance in price for the unit was and is preposterously unreasonable, superfluous thus being unconscionable. To: Susan Patrick, Esq. From: Leslea Scott, MBA, MS, PHR, SHRM-CP Date: July 30, 2021 RE: Andrew and Allison Jones Introduction This brief is regarding a signed agreement between Advantage Housewares and Andrew and Allison Jones, and a potential allegation of unconscionability for a rent-to-own purchase of a washer and dryer unit. Enforcing the agreement contract against the Joneses would be considered as unconscionable due to the evident gross disparity, overreaching and oppressive influences therein. The Joneses learned in their later due diligence that comparable washer and dryer units, were priced four-times lower. Question Presented According to laws of Virginia, what is the “two-prong test” that is applied to establish if an agreement is unconscionable? Is unconscionability a viable defense for the Joneses in this action? Answer For an agreement to be considered as unconscionable, the Virginia courts will apply the two- pronged test which consist of; gross disparity and overreaching and oppressive influences. First test, the requirement of gross disparity is when there a vast difference in price or monetary value of said assets such as property or other that is received by a party or parties. Second test, the requirement of overreaching or oppressive influences is a presence of fraud, and its proneness to mislead, coerce or even threaten a party to do something that will provide an advantage for the other. There is evidence that the unconscionability defense is a viable defense based on the evidence of the gross disparity regarding the vast difference in the price of the unit in comparison to the normal market price. Also, the overreaching and oppressive influences with the sales associate knowing and understanding the situation that prompted the purchase by the Joneses and their having no other alternatives. An agreement or transaction in this case, is deemed unconscionable if no one under reasonable conditions who is truthful and equitable would offer or accept. Statement of Facts The Joneses found themselves in the unfortunate circumstances a failed washer and dryer purchase a replacement washer and dryer unit as they resided in a rural community without access to a laundromat. The Joneses were experiencing financial hardship at the unit stopped working and due to credit challenges, they were unable to secure lines of credit or other standard financing. With urgency, the Joneses contacted a sales representative named Mr. Plyburn, with Advantage Housewares and discussed what they were shopping for, their current credit and financial encumbrances. Having no other known viable options available to them, the Joneses agreed to a 12-month payment plan of $250.00 per month. The Joneses initially had no problem with the plan and was timely in their payments as scheduled until the 4th payment in the agreement. Andrew’s mother abruptly passed away, while in concert Allison’s father became unwell. The responsibility fell solely to Andrew and Allison to manage the funeral arrangements as well as caring for their elderly father who was in failing health, hence the reason the 4th payment was an unfortunate and unplanned oversight. Once the missed payment was realized, Allison promptly made that past due and upcoming payment as well to cover both payments for month four and five. It was two-weeks later, and Advantage Housewares sent a demand letter to the Joneses that stated that due to the missed payment, they owe an exorbitant late fee of $1,000 and Advantage has now called the agreement to be paid in full the amount of $2750 that includes the remaining payment and late fee. The Joneses were taken aback upon learning of this egregious and unreasonable clause in the agreement they were unaware of. Shortly afterwards, Andrew decided to research comparable units currently on the market and found prices that ranged between $1000 to $1250 at your neighborhood Home Depot and Lowes. Already financially strapped for cash and the inability to obtain any traditional financing options, their out of pocket cost will be around $4000 to Advantage Homewares. Adding insult to injury further, one week later after the demand letter for payment in full, the Joneses received notification that an action has been file against them by Advantage to enforce the agreement or face repossession of the unit. Discussion The Joneses faced a difficulty when their current washer and dryer unit had a mechanical failure, and due to their rural setting, there was no laundromats or washaterias in the vicinity. Out of desperation and need, the Joneses disclosed unwittingly their credit and financial challenges to Advantage Homewares. 1. Gross Disparity In Derby v. Derby “gross disparity in the value exchanged is a significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable.” Derby v. Derby, 8 VA. App. 28, 378 S.E.2d 74, 79 (1989) Although the Joneses disclosed to the sales associate at Advantage Housewares their financial challenges and lack of creditworthiness, straight-away Advantage Homewares seized the opportunity to draft an agreement that would egregiously exceed the said unit over $3000 the market price. Monthly payments were timely until the oversight of the missed payment due to the death in their family and another parent’s failing health, which was the reason for the missed payment, that was swiftly addressed prior to any communication from Advantage, bring their account to current status. Reviewing the Findings of Derby v. Derby, “gross disparity in the value exchanged is a significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable.” Derby v. Derby, 8 VA. App. 28, 378 S.E.2d 74, 79 (1989) Again, Derby v. Derby, “the court’s conclusion of unconscionability was supported by findings of additional factors. There is evidence of concealment, misrepresentation and undue advantage.” Derby v. Derby, 31, 378 S.E.2d 74 (1989) 2. Overreaching or Oppressive Influences Again, in Derby v. Derby, “the intrinsic fairness of the terms of agreement in relation to all attendant circumstances, including the relationship and duties between the parties.” Derby v. Derby, 8 VA. App. 28, 378 S.E.2d 74 (1989) In Galloway v. Galloway, “A significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable.” Galloway v. Galloway, 47 VA. App. 83, 622 S.E.2d 267 (2005) Due to their urgent need for the washer and dryer unit, the Joneses felt wholeheartedly compelled to agree to the outrageous terms, because they had no other available avenues to make the purchase, and armed with that knowledge Advantage Housewares exploited their circumstance to the fullest. It is evident that the Joneses was ignorant regarding the terms and covenants of the agreement, and how it worked. It is unreasonable to expect anyone to accept terms that result in a $1000 late fee for one payment, hence providing no credence in the Joneses having a clear understanding of the agreement whatsoever. The Joneses acted with a bias for urgency to expeditiously pay what was not only past due, but also an early payment to get back on track, considering all that was happening in their personal lives. Conclusion Based on the preponderance of the evidence regarding the capacity of the Joneses from their emotional anguish, financial struggles, basic need for resources and services such as the ability to launder their clothing, to being bereaved. It is clear, that the sequence of events found them in a place of disadvantage and in the same vein easy prey to unscrupulous business practices. The significance in price for the unit was and is preposterously unreasonable, superfluous thus being unconscionable.