KANSAS COMMENT, 1973

Subsection (a):

This definition of "agricultural products" is derived from the Agricultural Marketing Act of 1946, 7 U.S.C. section 1626. Though the definition of "agricultural products" is broad, the operative definition is "agricultural purpose" and this is narrowed by the requirement that the person dealing with the agricultural products be one who cultivates, plants, propagates, or nurtures the agricultural products. Agricultural transactions are generally covered by this act, except with respect to home solicitation sales.

Subsection (b):

This definition of "consumer" is intentionally broad. It covers not only individuals who seek or acquire goods, services or real estate for personal, family or household purposes, but also sole proprietors such as farmers and business people. The term is broader than the definition of "buyer" in the Buyer Protection Act.

Subsection (c):

This act covers sales, leases, assignments and any other disposition for value of tangible personal property, real estate, services, and intangible property. The only requirement is that the transaction involve a "consumer." The only consumer transactions not covered by this act are insurance contracts and securities. The legislature felt that securities fraud is adequately dealt with in the Kansas Blue Sky Law (K.S.A. 17-1252 to 17-1275), and that insurance fraud is adequately covered by K.S.A. 40-2402 to 40-2411; dual regulation in these two areas was felt to be undesirable.

Subsection (e):

This act very broadly defines "goods" as a term of art to include real estate and intangible personal property.

Subsection (f):

1. The home solicitation sale provisions of article 3 single out for special treatment sales in which the transaction is solicited face-to-face at a residence of the buyer. An underlying consideration is the belief that in a significant proportion of such sales the buyer is induced to sign a sales contract by high pressure techniques. The act recognizes that many buyers in such cases may be unwilling parties to the transaction and gives to them a limited right to cancel the sale. The right of cancellation applies only to "home solicitation sales."

2. The definition of "home solicitation sale" differentiates between those types of transactions which have been the subject of particular abuse and those which have not. Although high pressure salesmanship can be practiced anywhere, the underlying theory of this act is that the sale in the home is particularly susceptible to such methods. In order to fit the definition, there must be personal solicitation at the residence of the buyer. Door-to-door sales made by bank credit card are included as "sales" even though they might for some purposes be considered "loans" by the credit card issuer. In certain cases, real estate and insurance transactions may be included.

3. Business and agricultural sales are excluded, although such transactions are covered by other provisions of this act, at least where the debtor is not an organization. Certain transactions not within the policy of section 18, such as a sale initiated by the buyer, are excluded from the definition of "home solicitation sale" although they may involve some negotiation at the buyer's home. The $25 minimum figure is included to exempt small-ticket transactions where the trouble of complying was felt to outweigh the protection given to the consumer.

Subsection (h):

This definition, as well as the definition of "warranty" in subsection (m), is intended to expand the warranty obligations of a seller of merchandise. They incorporate in large part the definitions and concepts in the Uniform Commercial Code (UCC). The definition of "merchantable" now includes compliance with statutes designed to set standards for products sold or furnished to consumers. This could include the safety provisions for automobiles under the federal law, standards of grading for meat and food stuffs, useful life of products that are so dated, and the like. On the other hand, it is recognized that what is "merchantable" may not involve obligations in excess of those appropriate to the goods, i. e., an antique automobile is not rendered "unmerchantable" simply because its useful life is substantially shorter that that of a new car. In short, the definitions of "merchantable" and "warranty" are limited by section 50-639(d) of this act.

Subsection (i):

The term "organization" would include corporations, trusts, estates, partnerships, cooperatives and associations. The definition is important in determining which buyers are protected by the act.

Subsection (j):

The term "person" is all-embracing to include both natural persons and organizations.

Subsection (k):

The term "services" is broadly defined to include work, labor, the granting of privileges, and other acts which do not directly involve the sale of goods, real estate or intangibles.

Subsection (l):

In addition to manufacturers, wholesalers, and dealers, debt collection agencies and advertising agencies fall within this definition. No direct contact with the consumer is required. Section 50-635 should be consulted in order to ascertain the conduct by suppliers which is exempt from the act.

Revisor's Note:

For home solicitation sales, see 50-640.

Law Review and Bar Journal References:

"The New Kansas Consumer Legislation," Barkley Clark, 42 J.B.A.K. 147, 190 (1973).

Landlord-tenant implied warranty of habitability, 22 K.L.R. 666, 682 (1974).

"A New Kansas Approach to an Old Fraud," consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623 (1975).

The uniform commercial code, the statute of frauds, and the farmer, 25 K.L.R. 318, 322 (1977).

Strict liability in tort as adopted in Kansas, 25 K.L.R. 462, 467 (1977).

"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197 (1979).

"Broker Beware—Real Estate Agent Liability in Kansas After Johnson v. Geer Real Estate Co.," Marilyn M. Eddy, 35 K.L.R. 645, 650 (1987).

"Addressing the Consumer's Worst Nightmare: Toward a More Expansive Development of the Law of Tortious Fraud and Deceptive Practices in Kansas," Ellen Byers, 38 W.L.J. 455 (1999).

"2001 Legislative Wrap-Up," Paul T. Davis, 70 J.K.B.A. No. 7, 14 (2001).

"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).

"Buyers Beware: Real Estate Sellers Can Misrepresent the Condition of Known Defects [Alires v. McGehee, 85 P.3d 1191 (Kan. 2004)]," Adam T. Pankratz, 44 W.L.J. 475 (2005).

"'That's Unfair!' Says Who — The Government or the Litigant?: Consumer Protection Claims Involving Regulated Conduct," Victor E. Schwartz, Cary Silverman & Christopher E. Appel, 47 W.L.J. 93 (2007).

"Williamson v. Amrani: The KCPA Applies to the Practice of Medicine - For a Limited Time," Nancy Ogle, K.D.J. Summer (2007).

Attorney General's Opinions:

Unlawful acts; sale of agricultural seed on grower's premises. 85-97.

Consumer protection; disclaimer or limitation of warranties. 86-25.

Financial institution that occasionally sells motor vehicles it has repossessed is not a "supplier" under Kansas Consumer Protection Act. 2005-2.

CASE ANNOTATIONS

1. Defendant qualifies as "person"; vehicle sold constitutes "goods". Bell v. Kent-Brown Chevrolet Co., 1 K.A.2d 131, 133, 561 P.2d 907.

2. Sale and installation of transmission and piping system constituted a service; act applicable. Meyer v. Diesel Equipment Co., Inc., 1 K.A.2d 574, 578, 570 P.2d 1374.

3. Cited; on counterclaim for damages under Consumer Protection Act for violations of the Residential Landlord and Tenant Act, held that the Residential Landlord and Tenant Act was specific and took precedence over the broader Consumer Protection Act. Chelsea Plaza Homes, Inc. v. Moore, 226 K. 430, 432, 601 P.2d 1100.

4. Debt collection agency is "supplier" within meaning of Consumer Protection Act. State ex rel. Miller v. Midwest Service Bureau of Topeka, Inc., 229 K. 322, 323, 324, 623 P.2d 1343.

5. Selling of feeder pigs was a consumer transaction under the Kansas Consumer Protection Act. Plaintiff failed to produce sufficient evidence to support claim. Musil v. Hendrich, 6 K.A.2d 196, 198, 199, 627 P.2d 367.

6. Solicitation by supplier may be consumer transaction sufficient to subject supplier to act. Watkins v. Roach Cadillac, Inc., 7 K.A.2d 8, 9, 13, 637 P.2d 458 (1982).

7. A home loan mortgage is a consumer transaction; action brought by attorney general to enforce KCPA; State is real party in interest and statute of limitations did not run. State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 K.A.2d 57, 58, 59, 60, 649 P.2d 419 (1982).

8. A home loan mortgage is "consumer transaction." Swanston v. McConnell Air Force Base Fed'l Cred. Union, 8 K.A.2d 538, 542, 661 P.2d 826 (1983).

9. Used car dealer cannot limit implied warranty of merchantability and fitness by extending narrow express warranty. Duke v. King Lincoln-Mercury, Inc., 234 K. 840, 841, 676 P.2d 744 (1984).

10. Application of act considered; directed verdicts for defendants erroneous. Stair v. Gaylord, 232 K. 765, 775, 659 P.2d 178 (1983).

11. Cited; unconscionability of illegible liquidated damages clause in lease with disparity in sophistication between lessor and lessee farmer examined. John Deere Leasing Co. v. Blubaugh, 636 F.Supp. 1569, 1574 (1986).

12. Consumer protection act not preempted by state corporation commission in cases involving deceptive practices by intrastate shipper (60-304). Bailey v. Morgan Drive-Away, Inc., 647 F.Supp. 648, 655, 656 (1986).

13. Unconscionability under UCC, UCCC and hereunder contrasted; unconscionability under UCCC question for trier of fact. Topeka Datsun Motor Co. v. Stratton, 12 K.A.2d 95, 107, 736 P.2d 82 (1987).

14. Cited; act held applicable to real estate transactions; claim dismissed on theory no evidence of deceptive act or practice shown. Hoffman v. Haug, 242 K. 867, 872, 873, 752 P.2d 124 (1988).

15. Licensed real estate salesperson selling own residence is supplier; nondisclosure of material fact as not proscribed by 50-626(b)(3) determined. Heller v. Martin 14 K.A.2d 48, 51, 782 P.2d 1241 (1989).

16. Offer to settle in excess of what plaintiffs owed under GM protection plan not an unconscionable act. Farrell v. General Motors Corp., 249 K. 231, 242, 815 P.2d 538 (1991).

17. Contractual exclusion of implied warranties was void under Kansas consumer protection act. Winchester v. Lester's of Minnesota, Inc, 983 F.2d 992, 993, 996 (1992).

18. Act does not apply to sureties who are not themselves seeking or acquiring property. First Nat'l Bank of Anthony v. Dunning, 18 K.A.2d 518, 524, 855 P.2d 493 (1993).

19. Franchisees who incorporated gasoline dealerships were individuals for KCPA purposes. Wayman v. Amoco Oil Co., 923 F.Supp. 1322, 1363 (1996).

20. Bank which sold lots in subdivision held to be supplier for KCPA (50-621 et seq.) purposes. York v. InTrust Bank, N.A., 265 K. 271, 288, 962 P.2d 405 (1998).

21. Issue concerning willfulness of auto seller's allegedly deceptive acts precluded summary judgment under KCPA (50-623 et seq.). Griffin v. Security Pacific Automotive Financial, 33 F.Supp.2d 926, 929 (1998).

22. Provision allowing cancellation of door-to-door sale applies to sales to businesses. Dealer's Leasing, Inc. v. Allen, 26 K.A.2d 745, 748, 994 P.2d 651 (1999).

23. Question certified to state supreme court concerning whether party is a supplier under subsection (j). Alexander v. Certified Master Builder Corp., 59 F.Supp.2d 1173, 1174 (1999).

24. Under facts of case, defendant found to be a supplier whether or not it deals directly with the consumer. Alexander v. Certified Master Builders Corp., 268 K. 812, 1 P.3d 899 (2000).

25. Sale of corn planter was not "property subject to a consumer transaction" as sale was to a corporation which then sold it to a limited liability company. Limestone Farms, Inc. v. Deere & Company, 29 K.A.2d 609, 29 P.3d 457 (2001).

26. Kansas Consumer Protection Act is intended to protect consumers; act does not extend to corporate organization. The CIT Group v. E-Z Pay Used Cars, Inc., 29 K.A.2d 676, 32 P.3d 1197 (2001).

27. Alleged misrepresentations allegedly made by bank to debt collection agencies concerning credit card debt was not actionable under KCPA. Lowe v. Surpas Resource Corp., 253 F.Supp.2d 1209, 1235 (2003).

28. Suppliers solicitation in Kansas provided jurisdiction under Kansas consumer protection act notwithstanding deceptive act in Missouri. State ex rel. Kline v. Berry, 35 K.A.2d 896, 902, 137 P.3d 500 (2006).

29. Supplier defined. Ellibee v. Aramark Correctional Services, Inc., 37 K.A.2d 430, 432, 154 P.3d 39 (2007).

30. Plaintiff's consumer protection act claim dismissed; no consumer transaction involved. Berry v. National Medical Services, Inc., 41 K.A.2d 612, 205 P.3d 745 (2009).

31. School district purchase of land under threat of condemnation not subject to Kansas consumer protection act. Knop v. Gardner Edgerton U.S.D. No. 231, 41 K.A.2d 698, 205 P.3d 755 (2009).

32. Factual question whether defendant was a "supplier" remains; issue remanded. Osterhaus v. Toth, 291 K. 759, 249 P.3d 888 (2011).

33. Out-of-state consumer debt settlement service would qualify as "suppliers" but the fees charged would not be a "deceptive act." In re Kinderknecht, 470 B.R. 149 (Bkrtcy. D. Kan. 2012).

34. A "family partnership" requires formation of a partnership under Kansas law. Hayes v. Find Track Locate, Inc., 60 F.Supp.3d 1144, 1153 (D. Kan. 2014).

35. Discover bank is not a supplier under the Kansas consumer protection act if the bank is subject to state or federal regulation; evidence of such regulation would preclude debtor's KCPA claim against debt collector. Kalebaugh v. Cohen, McNeile & Pappas, 76 F.Supp.3d 1251, 1260 (D. Kan. 2015).

36. Mortgagee's possible claim for debt collection practices in violation of KCPA were preempted by the bankruptcy code. In re Larkin, 553 B.R. 428, 445 (Bkrtcy. D. Kan. 2016).

37. Banks are not included in the definition of "supplier" under the Kansas consumer protection act if the bank is subject to state or federal regulation related to disposition of repossessed collateral. Cmty. First Nat'l Bank v. Nichols, 56 K.A.2d 1057, 443 P.3d 322 (2019).