Parker v. George Thompson Ford, Inc.

83 F.R.D. 378, 28 Fed. R. Serv. 2d 499
CourtDistrict Court, N.D. Georgia
DecidedJuly 26, 1979
DocketNo. C78-1918A
StatusPublished
Cited by10 cases

This text of 83 F.R.D. 378 (Parker v. George Thompson Ford, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker v. George Thompson Ford, Inc., 83 F.R.D. 378, 28 Fed. R. Serv. 2d 499 (N.D. Ga. 1979).

Opinion

ORDER

MO YE, District Judge.

This is an action for damages brought under the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq.; the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1901 et seq.; the Georgia Motor Vehicles Sales Finance Act, Ga.Code Ann. § 96-1001 et seq.; and the Georgia common law of fraud. The action is brought on behalf of plaintiff Carol Sue Parker, individually, and allegedly as a representative of all those allegedly similarly situated, and arises out of the credit sales of automobiles by defendant George Thompson Ford, Inc. (“Thompson Ford”) to plaintiff Parker and others pursuant to installment sales contracts. Some of these contracts, including plaintiff’s contract, were assigned to defendant General Finance Corporation (“GFC”). Presently pending before the Court are plaintiff Parker’s motion to maintain class action and for certification of the class and plaintiff’s motion to compel discovery.

Plaintiff contends that defendant Thompson Ford devised a fraudulent and deceitful scheme whereby defendant represented to class members that in order to purchase an automobile on credit, they must first establish their credit with Thompson Ford. Each class member could allegedly do this by making a “good faith” payment on a Supplemental Rental Agreement and entering into a series of monthly rental agreements until the credit reputation of the class member was established with defendant Thompson Ford. All class members allegedly executed a written Supplemental Rental Agreement with defendant by which defendant agreed to apply a “good faith” payment toward the purchase price of the automobile when later purchased and also agreed to sell the automobile at its depreciated book value. Plaintiff maintains that defendant Thompson Ford verbally represented to each class member that a substantial part of the monthly rental payments would be applied toward the purchase price of the automobile.

Plaintiff Parker contends that the Retail Installment Sales Contracts used by defendant Thompson Ford in the credit sales of automobiles to the class members failed to disclose the true selling price of each automobile and the application of the rental payments toward the purchase price of each automobile in violation of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. Plaintiff also alleges that defendant Thompson Ford, with intent to defraud, failed to provide an odometer statement to the class members as required by 15 U.S.C. § 1988. Plaintiff Parker further alleges that defendant Thompson Ford charged each class member a “service fee” which in fact was an additional finance charge, thereby allegedly rendering the interest rate charged each class member usurious under Ga.Code Ann. § 96-1004. Finally, plaintiff asserts that defendant wrongfully repossessed and converted automobiles that [380]*380it sold on credit to class members at a time when it was holding funds of these class members in excess of any amounts that they owed under the Retail Installment Sales Contracts.

Plaintiff Parker has moved to maintain a class action and for class certification on behalf of a “main class” and six “subclasses” pursuant to Fed.R.Civ.P. 23(a), (bX3), and (c)(4)(B) and pursuant to Ga. Code Ann. § 81A-123. With regard to Fed. R.Civ.P. 23(a), plaintiff contends that although the precise identity of the individual members is not yet known, and can be known only through discovery, the “main class” is so numerous that a joinder of all members is impracticable. Plaintiff further contends that there are questions of law and fact common to the class, that her claims are typical of the claims of each member of the class, and that, as the representative party, she will fairly and adequately protect the interests of the class as required by Fed.R.Civ.P. 23(a). In addition, plaintiff Parker maintains that the prerequisites of Fed.R.Civ.P. 23(b)(3) are satisfied because questions of law and fact common to the class members predominate over questions affecting only individual members and because a class action is superior to other available methods for the fair and efficient adjudication of this controversy.

In order to maintain a class action, the burden is on the prospective class representative to establish that the requirements of Fed.R.Civ.P. 23 have been met. Elster v. Alexander, 76 F.R.D. 440, 441 (N.D.Ga. 1977). The pertinent provisions of Fed.R. Civ.P. 23 are as follows:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

After careful consideration of plaintiff Parker’s motion and defendants’ responses thereto, the Court concludes that plaintiff Parker has failed to establish that the requirements of Fed.R.Civ.P. 23 have been met in this action. Although there does exist a group of customers who have contracted with defendants on terms similar to those of plaintiff, the Court does not believe that plaintiff’s situation is typical of that of the purported members of the class. Plaintiff Parker is in the position of having had a car repossessed with no deficiency asserted. Most members of the purported class, however, either still have their cars and a continuing relationship with defendants or have had their cars repossessed and face counterclaims for deficiencies.

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Bluebook (online)
83 F.R.D. 378, 28 Fed. R. Serv. 2d 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-george-thompson-ford-inc-gand-1979.