Rivera v. Fair Chevrolet Geo Partnership

165 F.R.D. 361, 1996 U.S. Dist. LEXIS 6462, 1996 WL 159371
CourtDistrict Court, D. Connecticut
DecidedMarch 25, 1996
DocketNo. 3:95cv485
StatusPublished
Cited by9 cases

This text of 165 F.R.D. 361 (Rivera v. Fair Chevrolet Geo Partnership) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rivera v. Fair Chevrolet Geo Partnership, 165 F.R.D. 361, 1996 U.S. Dist. LEXIS 6462, 1996 WL 159371 (D. Conn. 1996).

Opinion

RULING ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

DORSEY, Chief Judge.

Plaintiff alleges violations of the Truth in Lending Act, 15 U.S.C. § 1640 (“TILA”), the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. § 42-110a et seq. (“CUTPA”), and Connecticut Retail Installment Sales Financing Act, Conn.Gen.Stat. § 36a-770 et seq. (“RISFA”) in connection with a purchase of an automobile from Fair Chevrolet Geo Partnership. Plaintiff moves for class certification. Exercise of supplemental jurisdiction over the CUTPA and RISFA claims has been declined. The motion will be considered to the extent that it seeks certification for the TILA claims.

I. BACKGROUND FACTS

Plaintiff purchased an automobile from Fair Chevrolet Geo Partnership,1 in connection with which a TILA disclosure statement was provided. Fair also sold plaintiff a Balance Protection Plan (“BPP”), which provides that if the vehicle is destroyed or stolen before it is paid for, the buyer’s liability is limited to the insurance deductible. Fair also charged a lien fee. Plaintiff alleges that the charge for the BPP and the entire lien fee, or alternatively, the $40 difference between the lien fee and Connecticut’s recordation fee of $10, are “finance charges” as defined by TILA and Federal Reserve Board Regulation Z, 12 C.F.R. § 226.4. The BPP charge and the $50 lien fee were included in the “amount financed.” Plaintiff alleges that such inclusion violated TILA by underestimating the “finance charge” and “annual percentage rate.”

II. DISCUSSION

Plaintiff seeks to certify two classes for the TILA claims pursuant to Fed.R.Civ.P. 23, which provides in relevant part:

(a) ... One or more members of a class may sue ... 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 ... [and] ... (b) (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 [363]*363class action is superior to other available methods for the fair and efficient adjudication of the controversy.

When considering whether to certify a class, the allegations in the complaint are taken as true. Sharif by Salahuddin v. New York State Educ. Dep’t, 127 F.R.D. 84, 87 (S.D.N.Y.1989).

TILA specifically provides for the maintenance of a class action. 15 U.S.C. § 1640. However, damages in class actions are limited to actual damages, statutory damages of $500,000 or 1 per centum of the net worth of the creditor, costs and reasonable attorney’s fees. § 1640(a).

The first proposed class (“BPP class”) consists of all persons described as follows:

a) They entered into a transaction documented as a consumer credit transaction, in that Truth-in-Lending disclosures were provided;

b) They purchased the contract provision known as the Shawmut BPP;

c) The cost of the BPP provision was excluded from the “finance charge” and the “annual percentage rate” and included in the “amount financed;”

d) Shawmut Bank Connecticut, N.A. (“Shawmut”) is the assignee (in whole or in part) with respect to the transaction.2

The proposed class period would be one year prior to the filing of the action, the limitations period. See 15 U.S.C. § 1640(e). At a minimum, the class consists of 2,484 members.

The second proposed class (“lien fee class”) consists of all persons described as follows:

a) They entered into a transaction with Fair documented as a consumer credit transaction, in that Truth-in-Lending disclosures were provided;

b) Their contract includes a lien fee paid to public officials in excess of $10;

c) The “lien fee,” or the portion over $10, was not included in the finance charge. The proposed class period would be one year prior to the filing of the action. Class size would be at least 20-30 members.

Defendants oppose certification. Numerosity is not challenged. They claim that plaintiff does not meet the typicality and commonality requirement, that plaintiff cannot fairly and adequately represent either class and that class actions are not the superior method for adjudication of the claims. Defendants’ challenges asserting similar grounds will be analyzed together.

A. Commonality and Typicality

1. BPP Class

Plaintiff alleges that inclusion of the BPP in the “amount financed” and not in the “finance charge” and “annual percentage rate” violates TILA as a matter of law. Shawmut argues that the claim is not typical of others in the class because plaintiff testified at deposition that the salesman told him he was required to buy the BPP in order to purchase the ear. Thus, defendant asserts that plaintiffs purchase of the BPP was involuntary and should have been included in the finance charge.

However, defendant grafts on the basic claims facts surrounding plaintiffs transaction. Plaintiffs claim is simply that the BPP charge is included in the “amount financed” in all transactions where the BPP was sold. The claim is not based on the facts as to how the BPP came to be included in the “amount financed.” Plaintiff must show his claim arises from the same practice or course of conduct that gives rise to claims of other class members, and that the claims are based on the same legal theory. Garfinkel v. Memory Metals, Inc., 695 F.Supp. 1397, 1404 (D.Conn.1988). Factual differences will not render such a claim atypical. Edmondson v. Simon, 86 F.R.D. 375, 381 (N.D.Ill.1980). Since the legal theory is the same for the entire class, the BPP class meets both the typicality and the commonality requirements.

[364]*3642. Lien Fee Class

The claim for the lien fee class is that the entire lien fee, or at least the portion of the lien fee over $10, was improperly not included in the finance charge. Fair argues that plaintiff's claim regarding the lien fee is not typical of the class because plaintiffs $50 fee included other charges. At issue is whether the lien fee should be disclosed in the amount financed or in the finance charge, not what additional costs underlie the fee.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lewis v. First American Title Insurance
265 F.R.D. 536 (D. Idaho, 2010)
Moye v. Credit Acceptance Corp., No. X01cv99-0157073 (May 15, 2001)
2001 Conn. Super. Ct. 6239 (Connecticut Superior Court, 2001)
Macarz v. Transworld Systems, Inc.
193 F.R.D. 46 (D. Connecticut, 2000)
In Re Playmobil Antitrust Litigation
35 F. Supp. 2d 231 (E.D. New York, 1998)
Weber v. Goodman
9 F. Supp. 2d 163 (E.D. New York, 1998)
Lopez v. Orlor, Inc.
176 F.R.D. 35 (D. Connecticut, 1997)
Lopez v. Orlor, Inc., No. Cv 96-0387539 (Feb. 20, 1997)
1997 Conn. Super. Ct. 750 (Connecticut Superior Court, 1997)
Rivera v. Fair Chevrolet Geo Partnership
168 F.R.D. 11 (D. Connecticut, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
165 F.R.D. 361, 1996 U.S. Dist. LEXIS 6462, 1996 WL 159371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-fair-chevrolet-geo-partnership-ctd-1996.