clp10_02

8/3/2019 clp10_02

http://slidepdf.com/reader/full/clp1002 1/79

1

Chapter 2 Automobile Claims: Lemon RV Laundering,

Rebuilt Wrecks, Padded Repair Bills, FTC Used

Car Rule (OH)

Ronald L. Burdge is an attorney with the Burdge Law Office Co., LPA, 2299Miamisburg Centerville Rd., Dayton, OH 45459, Telephone: (937) 432-9500, Fax: (520) 432-9503, e-mail: [email protected], websites: www.OhioLemonLaw.com,www.RvLemonLaw.com, www.KentuckyLemonLaw.com, www.OhioConsumerLaw.com andothers. Co-counseling and coaching website: www.TheLawCoach.com. Ronald L. Burdge is inthe private practice of law in Dayton, Ohio, and is known throughout Ohio as a leadingConsumer Law attorney who has represented literally thousands of consumers in “lemon” carlawsuits over the last twenty years, and actively co-counsels and coaches other consumer lawattorneys. He has authored articles and lectured on the Ohio Lemon Law, Assistive DeviceLemon Laws, Recreation Vehicle Lemon Laws. Although the majority of his court cases have

involved defective motor vehicle litigation, he has also represented consumers in UDAP, productdefect, odometer tampering, contract breach, fraud, and commercial litigation in both state andfederal courts throughout Ohio, in Indiana and Kentucky. With extensive trial and appellateexperience related to motor vehicles and dealership business practices, he has also successfullyargued cases in various courts of appeals and the Ohio Supreme Court. He was admitted to theOhio Bar in 1978. His bar admissions include all Ohio state courts, several United States DistrictCourts (Ohio and Indiana), 6th Circuit Court of Appeals, and the United States Supreme Court.He is a member of numerous bar associations, has obtained several multi million dollar verdicts,and handled numerous ground breaking Consumer Law and Lemon Law cases.

Section 2.1.1 is a complaint against the manufacturer, seller and financer of a resoldlemon recreational vehicle (“RV”) without the disclosure of 47 of the 49 prior defects in theRV.

1Claims are made under the Ohio Lemon Law, the Federal Warranty Act, the Ohio

Consumer Act, the Ohio Motor Vehicle Sales Rule, the Truth in Lending Act, and for fraud. Thecomplaint seeks actual, punitive and statutory damages, attorney fees, declaratory relief, andreplacement or a buyback of the RV. Section 2.1.2 are combined interrogatories, requests foradmissions, and document requests to the dealer. Section 2.1.3 and 2.1.4 are similar discoveryrequests to the manufacturer and the financer respectively. Sections 2.1.5 and 2.1.6 are follow-up discovery requests to the dealer and financer. Section 2.1.7 is a letter to the client explainingthe attorney’s settlement strategy. Section 2.1.8 is a settlement offer by the consumers seeking atake back of the RV, damages, attorney fees, cy pres payments to public interest organizationsand the state consumer protection office, and a consent decree. Section 2.1.9 is a graphicallybased presentation by the consumers prepared for a mediation conference. Section 2.1.10 is achart of the repair history of the vehicle.

Section 2.2 is a complaint against a car dealer and the financer for selling a rebuiltwrecked rental car as a “one-owner,” “garage kept” car that “had never been in rain, sleet, orsnow.”2 The dealer offered guaranteed financing and a warranty. The complaint allegesmisrepresentations, unfair and unconscionable conduct in violation of the Ohio Consumer SalesPractices Act, the Ohio Motor Vehicle Sales Rule, the FTC Used Car Rule, the privacy

1 See National Consumer Law Center, Automobile Fraud §§ 1.4.6, 2.1.5, 2.4.5.5, 6.3 (2d ed. 2003 and Supp.).2 See National Consumer Law Center, Automobile Fraud § 2.1.4 (2d ed. 2003 and Supp.).

8/3/2019 clp10_02


2

protections of the Gramm-Leach-Bliley Financial Institutions Act, breach of contract, breach of contract, Magnuson Moss Warranty Act, and Fraud. The complaint seeks actual, statutory, andpunitive damages, and attorney fees.

Section 2.3 is a class action complaint against a car dealer for padding repair bills withdeceptive surcharges, such as “Misc,” “EPA/Shop Supplies,” and “Cinergy Surcharge.”3 The

complaint alleges that these surcharges resulted in $185,000 of deceptive overcharges each yearthat should be returned to the class with statutory damages, and attorney fees.Section 2.4 is a class complaint against a car dealer and the supplier of a used car window

sticker that violated the FTC Used Car Buyers’ Guide Window Sticker requirements.4 Thecomplaint alleged that the violation of the FTC rule violated the Ohio Consumer Sales PracticesAct and sought $200 minimum damages for each member of the class, injunctive relief andattorney fees.

3 See generally, National Consumer Law Center, Consumer Warrrany Law § 17.8 (2d ed. 2001 and Supp.).4 See generally, National Consumer Law Center, Consumer Warrrany Law § 14.7 (2d ed. 2001 and Supp.).

8/3/2019 clp10_02


3

2.1 Undisclosed Sale of Lemon Buy-Back RV

2.1.1 Complaint

IN LICKING COUNTY COMMON PLEAS COURT, OHIO

[CONSUMER 1 and CONSUMER 2],Plaintiffs,

v.

FLEETWOOD ENTERPRISES, INC.dba FLEETWOOD MOTORHOMES OFPENNSYLVANIA, INC.P.O. BOX 59933

RIVERSIDE, CA 92517

AND

RCD SALES COMPANY LTDC/O CHARLES E. HAIRE, S/A1990 HEBRON ROADHEBRON, OH 43025-0000

AND

FIRST MERIT BANK, NA295 FIRST MAIN CIRCLEAKRON OH 44309

Defendants.

Case No.

Judge

COMPLAINT & JURY DEMAND (LEMON LAW)

FIRST CLAIM: OHIO LEMON LAW

1. This case involves what is called, in the parlance of the car business, “lemonlaundering”, which is where the manufacturer buys back a “lemon” motor vehicle and then thevehicle gets resold through a process that prevents a subsequent consumer purchaser from fullyunderstanding the nature and extent of the unrepairable defects that plagued the vehicle. In thiscase the vehicle is a 1999 Fleetwood Pace Arrow Recreational Vehicle, bearing VIN [redacted],

8/3/2019 clp10_02


4

plagued with defects. Since purchasing the motor home, [Consumer 1 and Consumer 2] havelearned the vehicle was repurchased from the original owner in Texas who had a laundry list of problems — 49 different problems to be exact — which is a far cry from the 2 problems thatwere disclosed at the date of sale. [Consumer 1 and Consumer 2] have personally experienced atleast 20 different problems, to date, and are afraid they have at least another 29 problems ahead

of them, assuming none of their problems are new which is probably not a good assumptiongiven the history of this vehicle.2. Plaintiffs first learned their vehicle was “a buyback” from the Dealer, during the

course of signing the purchase paperwork. The repurchase disclosure had been “sandwiched” inbetween the myriad of sales documents and said there had been just two problems: water leaksand black tank piling. Plaintiffs later learned, from the original owner, that the motor home hadbeen plagued with a huge number of problems. At no time were they told that the title had to be“branded” as a Lemon Law “buyback”. If they had been told the truth about the vehicle or thatthe law required the title be branded, they would never have purchased the vehicle.

3. At the date of sale, after most of the sales documents had already been signed, theDealer presented Plaintiffs with a form called a “Fleetwood Disclosure of Vehicle Repurchase or

Reacquisition Notice” and trivialized the significance of it, claiming that everything had beenproperly repaired and that the form really showed [Consumer 1 and Consumer 2] that the vehiclewas still covered by warranty and was fixed.

4. When the Dealer sold this reacquired vehicle to Plaintiffs, it did so under the OhioLemon Law, and the Lemon Law requires that the title be “branded” before the sale.

5. Excited to get a low-mileage motor home that was a one-owner vehicle, in suchsupposedly good condition, and warranted by the Manufacturer to be free of the only twoproblems the RV had, [Consumer 1 and Consumer 2] agreed to pay the Dealer $74,228.78 forthe vehicle.

6. This claim is for violation of the Ohio Lemon Law5

and the Ohio Consumer SalesPractices Act6 by Fleetwood Enterprises, Inc.7

7. The allegations of all other paragraphs and claims in this pleading are incorporated asif fully rewritten herein.

8. Plaintiffs performed all conditions precedent to private enforcement of the OhioLemon Law and the Consumer Act.

9. The vehicle involved in this case qualifies as a “lemon”, both generically and underthe Lemon Law; it was a lemon when it was first sold with Fleetwood’s warranty and it was alemon when it was sold to Plaintiffs with Fleetwood’s warranty.

10. As a result of the above, and the allegations below, inter alia, the Manufacturerviolated the Ohio Lemon Law and the Consumer Act to the injury of Plaintiffs and the rights andobligations of the parties have become fixed under the law.

11. At all times relevant, Plaintiffs were each a consumer8.12. At all times relevant, RCD Sales Company, LTD9 was and is a corporation and a

supplier10 and merchant11 and did business within the jurisdiction of this Court.

5 Revised Code 1345.71 et seq., hereafter referred to as the Lemon Law.6 Revised Code 1345.01 et seq., hereafter referred to as the Consumer Act.7 Hereafter referred to as the Manufacturer.8 Within the meaning of Ohio’s Unfair and Deceptive Acts and Practices statute, the Ohio Consumer Sales PracticesAct, R.C. 1345.01(D).9 Hereafter referred to as the Dealer.10 Within the meaning of R.C. 1345.01(C).

8/3/2019 clp10_02


5

13. At all times relevant, First Merit Bank, NA12 was and is a corporation and wasengaged in the business of financing the sale of motor vehicles by Ohio consumers for saidconsumers’ personal use, and was a corporation licensed to do business in Ohio, and was acreditor and did business within the jurisdiction of this Court.

14. Plaintiffs’ obligation to pay the Financier under the contract between them is subject

to all claims and defenses which Plaintiffs have against the Dealer, as are alleged morespecifically below, and the Financier is not a holder in due course of any instrument signed byPlaintiffs and the Financier is bound by its contract with Plaintiffs to be jointly and severallyliable for all remedies and relief which Plaintiffs may obtain against Dealer up to the amountspaid or owed by Plaintiffs to Financier.

15. At all times relevant, the Manufacturer was a corporation and a supplier13 andmerchant14 engaged in business activities within the jurisdiction of this court.

16. On or about July 27, 2002 the Plaintiffs and the Dealer and the Financier and theManufacturer all entered into a consumer transaction,15 in that the Dealer agreed to arrange tosell a certain vehicle to the Plaintiffs and, as part of the deal, the Plaintiffs agreed to buy thatvehicle from the Dealer, and as part of the deal the Dealer agreed to arrange, and did so arrange,

for the Financier to extend credit to Plaintiffs to finance the transaction, which it agreed to do,and the Dealer agreed to perform services related to the transaction and its consummation to andfor the Plaintiffs and the Financier and the Manufacturer, and as part of the deal theManufacturer agreed to warrant the vehicle to be free from defects, the vehicle being a certain1999 Fleetwood Pace Arrow 34N Class A motor coach.

17. The goods16 which were the subject of the agreement included a certain 1999Fleetwood Pace Arrow 34N motor coach.

18. A copy of the sales contract is attached as Exhibit 1; a copy of the finance contract isattached as Exhibit 2; and a copy of the Fleetwood “repurchase or reacquisition” notice isattached as Exhibit 3.

19. The manufacturer violated R.C. 1345.76(A) because, inter alia, it resold a vehicle inthis state without complying with R.C. 1345.76 in those manners described below.

20. The manufacturer, or its agent, violated R.C. 1345.76(A)(2) because, inter alia, itfailed to provide the Plaintiffs with a form that complied with the Lemon Law disclosure noticebefore having Plaintiffs sign any document related to the sale.

21. The manufacturer, or its agent, violated R.C. 1345.76(A)(2) because, inter alia, itfailed to provide the Plaintiffs with a form that complied with the Ohio Lemon Law disclosurenotice by stating words substantially the same as those required by law to be contained in thedisclosure notice. R.C. 1345.76(A)(2) makes it illegal for a Manufacturer or a Dealer to resell amotor vehicle in Ohio unless the manufacturer provides to the consumer, “prior to obtaining thesignature of the consumer on any document, a written statement on a separate piece of paper, inten-point type, all capital letters, in substantially the following form:

11 Within the meaning of R.C. 1302.01(A)(5).12 Hereafter referred to as the Financier.13 Within the meaning of R.C. 1345.01(C).14 Within the meaning of R.C. 1302.01(A)(5).15 Within the meaning of R.C. 1345.01(A).16 Within the meaning of R.C. 1310.01(A)(8).

8/3/2019 clp10_02


6

WARNING: THIS VEHICLE PREVIOUSLY WAS SOLD AS NEW. IT WASRETURNED TO THE MANUFACTURER OR ITS AGENT IN EXCHANGEFOR A REPLACEMENT VEHICLE OR REFUND AS A RESULT OF THEFOLLOWING DEFECT(S) OR CONDITION(S):

1._____________________________________________________________2._____________________________________________________________3._____________________________________________________________4._____________________________________________________________5._____________________________________________________________

____________________ _______________________DATE BUYER’S SIGNATURE

The Manufacturer shall list each defect or condition on a separate line of the written statementprovided to the consumer.” The form used by Fleetwood, attached as Exhibit 3, completely fails

to comply with the law.22. The Manufacturer also violated the Texas Lemon Law because, inter alia, it’s formfailed to include a toll-free telephone number of the Texas Commission that will enable apurchaser of a repurchased or replaced vehicle to obtain information about the condition ordefect that was the basis of the order for repurchase or replacement, and failed to restore thecause of the repurchase or replacement to factory specifications and issue a new 12-month,12,000 mile warranty on the vehicle.

23. The Manufacturer, or its agent, violated R.C. 1345.76(A)(2) because, inter alia, itfailed to provide the Plaintiffs with a form that complied with the Lemon Law disclosure noticeby stating on the form each defect or condition on a separate line.

24. The Manufacturer, or its agent, violated R.C. 1345.76(C) because, inter alia, it failedto obtain a certificate of title for the vehicle which was “branded” as required by law.

25. The Manufacturer, or its agent, violated R.C. 1345.76(D) because, inter alia, when itapplied for a certificate title for the vehicle, it failed to “clearly and unequivocally” tell the clerk of court that the vehicle for which it was applying to obtain a certificate of title was a buyback vehicle and that the title it was applying for was a buyback certificate of title and not a certificateof title.

26. The 1999 Fleetwood Pace Arrow 34N motor coach which is the subject of this casewas manufactured and/or distributed by the Manufacturer, reacquired thereafter by theManufacturer, and then resold in Ohio by the Dealer.27. Plaintiffs purchased the vehicle in reliance on the advertising and representations made tothem by the Manufacturer and the Dealer.28. The transaction between the defendants Dealer and Manufacturer, as it related to thePlaintiffs, constituted a transaction between merchants17.29. After purchasing the vehicle, Plaintiffs discovered that it did not conform to therepresentations of the Dealer and the Manufacturer inasmuch as it developed continuingmalfunctions, defects and problems, and now Plaintiffs have learned that the title to their vehicleis defective.

17 Within the meaning of R.C. 1302.01(A)(7).

8/3/2019 clp10_02


7

30. Through its advertising and otherwise, the Manufacturer represented that the vehiclesit built were fit for the purpose for which they were designed, that they are a safe and suitablevehicles for their intended designed use, reliably operable for private transportation.

31. Through its one year warranty, the Manufacturer represented that the vehicles whichit reacquires under the Lemon Law, including this one, were repaired before resale, and that they

are again made fit for the purpose for which they were designed, that they are again made to be asafe and suitable vehicles for their intended designed use, reliably operable for privatetransportation.

32. Plaintiffs purchased the vehicle in reliance upon the belief that the Manufacturerpossessed a high degree of manufacturing skill and judgment.

33. The above conditions of the vehicle, and the Dealer’s failure to comply with theLemon Law, constituted a breach of the Dealer’s warranties and caused a defective title to beissued to Plaintiffs.

34. The malfunctions and defects in the vehicle and its title severely and substantiallyimpaired its value to Plaintiffs.

35. Plaintiff provided the Manufacturer and/or one or more of its authorized and/or

franchised dealers with a reasonable number of opportunities to repair the vehicle but they haveeach neglected, failed, refused or otherwise been unable to do so within a reasonable amount of time or a reasonable number of attempts.

36. As a result of the above facts, the Manufacturer breached its warranties andrepresentations with respect to the vehicle, and its obligations under the Lemon Law.

37. As a result of the above facts, the Dealer breached its warranties and representationswith respect to the vehicle, and the obligations delegated to it by the Manufacturer under theLemon Law.

38. The Manufacturer and/or one or more of its authorized and/or franchised dealers, andthe Dealer, and the Financier had notices of the breaches of their respective representations andwarranties and contracts and agreements, and violations of the applicable laws, and had areasonable amount of time and a reasonable number of opportunities to cure, all within areasonable time.

39. Plaintiffs suffered and shall continue to suffer actual, incidental and consequentialdamages as a direct and proximate result of the inability or other failure of the said defendants’ joint and several breaches in an amount within the monetary jurisdiction of this court.

SECOND CLAIM: FEDERAL WARRANTY ACT


41. This claim is for violation of the Magnuson-Moss Warranty Act18 and Breach of Warranty and violation of the Consumer Act by the Manufacturer.

42. As a result of the above, inter alia, the Manufacturer is in violation of the WarrantyAct by its failure to comply with its warranty obligations.

43. As a result of the above, inter alia, the Manufacturer breached its warranty toPlaintiffs.

18 15 U.S.C. 2301, et seq.

8/3/2019 clp10_02


8

44. As a result of the above, inter alia, the Manufacturer has committed one or moreunfair or deceptive acts or practices before, during or after a consumer transaction betweenPlaintiffs and one or more defendants.

THIRD CLAIM: CONSUMER ACT


46. This claim is for violation of the Consumer Act by the Manufacturer and the Dealerand for which the Financier is liable.

47. The Dealer sold Plaintiffs a vehicle with a defective title and knew or should haveknown that the defective title would prevent Plaintiffs from transferring good title at a futuredate.

48. As a result of the above, inter alia, the Dealer violated the Lemon Law.49. As a result of the above, inter alia, the Manufacturer and the Dealer each violated the

Magnuson Moss Warranty Act.

50. As a result of the above, inter alia, the Manufacturer and the Dealer each breachedtheir respective warranties.51. During the course of the sale, the Dealer also violated the FTC Used Car Window

Sticker Rule19 and the Consumer Act.52. At all times relevant, the motor vehicle the Dealer sold Plaintiffs was a vehicle20 and

a used vehicle21, said defendant was a Dealer22, and Plaintiffs were each a consumer23.53. Dealer sold or offered for sale a used vehicle in or affecting commerce, as commerce

is defined in the Federal Trade Commission Act.54. The Dealer entered into a consumer transaction with Plaintiffs and at that time sold

or offered for sale a used vehicle in or affecting commerce, as commerce is defined in theFederal Trade Commission Act, and at that time failed to have properly posted on the subjectvehicle a “window sticker” form, a.k.a. a “Buyers Guide” form, that complied with the FTCUsed Car Window Sticker Rule and also failed to make available, prior to sale, the terms of anywritten warranty offered in connection with the sale of said vehicle.

55. The Dealer entered into a consumer transaction with Plaintiffs and at that time saidDealer offered a used vehicle for sale to these consumer-Plaintiffs without preparing, filling in asapplicable and displaying on that vehicle a “Buyer’s Guide”.

56. The Dealer entered into a consumer transaction with Plaintiffs and at that time saidDealer failed to give these buyer-Plaintiffs the window form displayed under 16 C.F.R. 455.2containing all of the disclosures required by the Rule and reflecting the warranty coverage agreedupon.

57. As a result of the above, inter alia, Dealer committed an unfair or deceptive act orpractice in violation of the FTC’s Used Car Window Sticker Rule and the Consumer Act.

19 16 C.F.R. 455.120 Within the meaning of 16 C.F.R. 455.1(c)(1).21 Within the meaning of 16 C.F.R. 455.1(C)(2).22 Within the meaning of 16 C.F.R. 455.1(c)(3).23 Within the meaning of 16 C.F.R. 455.1(c)(4).

8/3/2019 clp10_02


9

58. As a result of the above, inter alia, the Manufacturer and the Dealer each committedone or more unfair or deceptive acts or practices in violation of the Consumer Act, before, duringor after one or more consumer transactions between Plaintiffs and one or more of the defendants.

FOURTH CLAIM: MOTOR VEHICLE SALES RULE


60. This claim is for additional violations of the Consumer Act and the Motor VehicleSales Rule24 by the Dealer and for which the Financier is liable.

61. As a result of the above, inter alia, during the course of a consumer transactionbetween Plaintiffs and Dealer and Financier, the Dealer used a statement, layout, or illustrationin an advertisement or sales presentation which could create in the mind of a reasonableconsumer a false impression as to a material aspect of an advertised or offered vehicle, inviolation of O.A.C. 109:4-3-16(B)(3).

62. As a result of the above, inter alia, during the course of a consumer transaction

between Plaintiffs and Dealer and Financier, the Dealer failed to integrate into a written salescontract all material statements, representations or promises, oral or written, made prior toobtaining the Plaintiffs’ signature on the written contract with the Dealer, in violation of O.A.C.109:4-3-16(B)(22).

63. As a result of the above, inter alia, the Dealer violated the Motor Vehicle Sales Rule,before, during or after a consumer transaction between the Plaintiffs and one or more of thedefendants.

FIFTH CLAIM: TRUTH IN LENDING ACT


65. This claim is for violation of the federal Truth in Lending Act and/or the ConsumerLeasing Act and the Consumer Act by the Financier.

66. During the course of the instant consumer sales transaction, and credit transaction,the Financier did violate the federal Truth in Lending Act and/or Regulation Z in one or more of the following manners, inter alia:

a. It did fail to make required disclosures accurately, clearly, conspicuously, and in ameaningful sequence;

b: It did fail to make the mandated disclosures before the transaction wasconsummated.

67. As a result of the above facts, inter alia, the Financier violated the federal Truth inLending Act and/or Regulation Z, all to the legal injury of the Plaintiffs.

SIXTH CLAIM: FRAUD & DECEIT


24 Ohio Administrative Code 109:4-3-16(B).

8/3/2019 clp10_02


10

69. This claim is for fraud and deceit committed by the Manufacturer and the Dealer andthe Financier.

70. During the time the Dealer’s authorized agents were each dealing with the Plaintiffs,they were each representing the Dealer and the Financier simultaneously at various stages of thetransaction between the parties, with the knowledge and consent and authorization of both the

Dealer and the Financier, and each such person was therefore acting in a dual agency status.71. Before, on, and/or after Plaintiffs acquired an interest in the subject vehicle, theManufacturer became aware of the legal interest of the Plaintiffs in the vehicle.

72. Prior to that time, the Manufacturer and/or the Dealer knew or should have knownthat the subject vehicle could not be resold in Ohio the way it ultimately did it, but they did itanyway.

73. Prior to that time, the Manufacturer and/or the Dealer each knew or should haveknown that the procedures, practices and policies the Manufacturer and/or the Dealer put in placefor the resale of bought back Lemon vehicles would result in failure to comply with the OhioLemon Law, but they did it anyway.

74. When it did so, the Manufacturer knew or should have known that concealing the

extent of the cause of the Lemon Law buyback of the vehicle would cause the purchasingdealership to be misled about the existence and seriousness of any defects that may have existedprior to that dealer’s purchase of the vehicle, which the Manufacturer knew or should haveknown would likely cause that dealership to mislead any subsequent purchaser of the vehicleabout the existence and seriousness of those defects, and which the Manufacturer knew or shouldhave known would likely cause each subsequent purchaser of the vehicle to be misled about theextent of, the existence of, and the seriousness of prior defects, but it did it anyway.

75. The Dealer knew or should have known that the Manufacturer was concealing thefull extent of the cause of the Lemon law buyback of the vehicle and that the manufacturer’s actsand omissions would cause the Dealer to be misled about the existence and extent of thevehicle’s prior defects, which would cause the sales employees of the Dealer to be misled aboutthe same, which would likely cause all subsequent purchasers of the vehicle to be misled aboutthe vehicle’s prior defects, but the manufacturer did it anyway.

76. The knowledge of the Dealer is imputed by law to the Financier, as its principal,when the Dealer was acting on behalf of the Financier; the knowledge of the Dealer is imputedby law to the Manufacturer, as its principal, when the Dealer was acting on behalf of theManufacturer.

77. All of those concealed facts were material to the purchase of the vehicle by thePlaintiffs in this case.

78. The Manufacturer and the Dealer and/or the Financier each had a duty to timelydisclose to Plaintiffs the facts and information which it concealed.

79. The truth about the vehicle’s condition and its title and the vehicle’s prior historywas not readily observable or discoverable by Plaintiffs.

80. Before and during its transaction with the Plaintiffs, defendant Manufacturer madethe actual or implied representations and/or concealments discussed in detail above, of one ormore matters of fact relating to the 1999 Fleetwood Pace Arrow 34N which was the subject of the transaction between the parties and the goods and services it would provide Plaintiffs, thoserepresentations were material to the transaction and were made falsely and with express orimplied knowledge by said defendant of said falsity, or with such utter disregard andrecklessness as to the truth or falsity that knowledge may be inferred, and with the intent of

8/3/2019 clp10_02


11

misleading Plaintiffs into reliance, which Plaintiffs did so do and which Plaintiffs had a right toso rely.

81. Before and during its transaction with the Plaintiffs, defendant Dealer, acting foritself and for the Financier, made the actual or implied representations and/or concealmentsdiscussed in detail above, of one or more matters of fact relating to the 1999 Fleetwood Pace

Arrow which was the subject of the transaction between the parties and the goods and services itwould provide Plaintiffs, those representations were material to the transaction and were madefalsely and with express or implied knowledge by said defendant of said falsity, or with suchutter disregard and recklessness as to the truth or falsity that knowledge may be inferred, andwith the intent of misleading Plaintiffs into reliance, which Plaintiffs did so do and whichPlaintiffs had a right to so rely.

82. The acts and omissions of each agent, who acted for its principal in the course of thetransaction with the Plaintiffs, was subsequently ratified by each principal who is a defendant inthis case.

83. As a direct and proximate result of the above, Plaintiffs were injured and sufferedeconomic damages.

WHEREFORE, judgment is demanded against defendants, jointly and severally, as applicableaccording with the allegations above, hereinafter, as deemed proper and lawful by the Court,alternatively as follows:

PRAYER FOR RELIEF

1. On the first claim, for breach of warranty and violation of the Ohio Lemon Law andthe Consumer Act, statutory and other damages, remedies, and relief as deemed proper andlawful by the Court, for each and every violation that may be proven at trial, including an Orderdeclaring that Plaintiffs have the right to elect between a vehicle repurchase (i.e., a “buyback”)and declaring Plaintiffs entitled to a judgment against defendant in an amount of more than$25,000, or a vehicle replacement;

2. On the second claim, for violation of the Federal Warranty Act and the Consumer Actand Breach of Warranty, actual damages of an amount more than $25,000, statutory and otherdamages, remedies, and relief as deemed proper and lawful by the Court, for each and everyviolation that may be proven at trial;

3. On the third claim, for violation of the Consumer Act, actual damages of an amountmore than $25,000 or $200.00 statutory damages or three times such actual damages, whicheveris greater, and other damages, remedies, and relief as deemed proper and lawful by the Court, foreach and every violation that may be proven at trial;

4. On the fourth claim, for violation of the Motor Vehicle Sales Rule and the ConsumerAct, $200.00 statutory damages or three times such actual damages whichever is greater, andother damages, remedies, and relief deemed proper and lawful by the Court, for each and everyviolation that may be proven at trial;

5. On the fifth claim, for violation of the federal Truth in Lending Act and Regulation Z,statutory and other damages, remedies, and relief as deemed proper and lawful by the Court foreach and every violation that may be proven at trial;

6. On the sixth claim, for fraud and deceit, actual damages of more than $25,000 andpunitive damages of more than $25,000;

8/3/2019 clp10_02


12

ALTERNATIVE PRAYER FOR RELIEF

Or, at the election of the Plaintiffs and in the alternative to the damages set forth in the prayerabove,

1. On all claims, cancellation and/or rescission of the contract plus statutory remediesand relief as deemed proper, equitable and lawful by the Court, for each and every violationwhich may be proven at trial;

Plus on each and every claim, expenses of suit and litigation, interest from the date the contractwas consummated, and an Order finding Plaintiffs to have rescinded the transaction and/or tohave revoked acceptance, reasonable attorney fees; and an Order requiring the Financier toassert its claim or interest in the vehicle which is the subject of this suit and any cross claims orcounterclaims against any party hereto or be forever barred therefrom, and for judgment againstthe Financier in an amount to be determined as legal and proper by the Court together with anyand all other legal and equitable relief deemed necessary and just, plus all costs, and any and all

other legal and equitable relief deemed necessary and just.

Plaintiffs demand trial by Jury on all claims and all issues.

______________________Oh.Sp.Ct. 0015609 [Attorney for Plaintiffs]

8/3/2019 clp10_02


13

2.1.2 Discovery Directed to the Dealer


[CONSUMER 1], et al., Plaintiffs,

v.

FLEETWOOD ENTERPRISES, INC., et al.,Defendants.

Case No.

Judge

FIRST SET OF INTERROGATORIES, ADMISSIONS, AND DOCUMENT

REQUESTS TO RCD SALES COMPANY LTD.

Plaintiffs submit the following Combined Discovery Request to Defendant RCD SalesCompany LTD to be answered in accord with the Rules of Civil Procedure and within 28 daysafter service hereof.

Supplementation of any response hereto is requested to be made in a timely manner butno less than thirty days prior to the trial hereof, pursuant to C. Rule 26(E).

DEFINITIONS

“Manufacturer” means Fleetwood Enterprises, Inc., its agents, representatives, officers,employees, attorneys or any other person purporting to act, or acting on its behalf.

“Dealer” or “dealership” means RCD Sales Company LTD, its agents, representatives,officers, employees, attorneys or any other person purporting to act or acting on its behalf.

“Plaintiffs” means [Consumer 1 and Consumer 2], and/or plaintiffs’ agents,representatives, officers, employees, attorneys, or any other person purporting to act, or actingfor plaintiffs or on plaintiffs’ behalf.

“Sold”, “sale”, and “purchase” are phrases which, for the purpose of the below listedinquiries mean the transfer of title to the recreational vehicle involved in this lawsuit, andincludes the phrase “lease” for the limited purpose of this lawsuit.

“Subject vehicle” means the recreational vehicle which is the subject of this lawsuit, asfurther identified in the Complaint filed herein, being a 1999 Fleetwood Pace Arrow.

“Reacquired motor vehicle” means a recreational vehicle that has been repurchased orreacquired by Fleetwood Enterprises, Inc. because of warranty nonconformities or claims of warranty nonconformities.

All other phrases and words are defined as in their plain English meaning.

INTERROGATORIES

8/3/2019 clp10_02


14

1. What is the name, business address, and job position with you of every person who is

providing the answers to these questions?

2. Where and when (i.e., the place and date of sale) and by who (meaning the dealer’s

complete and full name) was the recreational vehicle which is the subject matter of this actionsold to plaintiffs?

3. Before the date on which the subject recreational vehicle was delivered to plaintiffs,was the recreational vehicle ever used for any purpose other than sale, i.e., as a demonstrator, forpersonal use, etc., and, if so, describe the use so made of the recreational vehicle?

4. What is the total number of times you serviced, repaired, or otherwise worked on the1999 Fleetwood Pace Arrow recreational vehicle involved in this case, or authorized others to dosuch for you?

5. With regard to question 4 and your answer above, what was the date of each suchservice, repair, or other work, the nature of each such service, repair or other work performed,and the name of all parts replaced upon such service, repair or other work?

6. With regard to question 4 and your answer above, was any service, repair or otherwork billed or otherwise invoiced to any person other than [Consumer 1 and Consumer 2] forpayment or reimbursement to you (i.e., such as for warranty or service contract work, toFleetwood Enterprises, Inc. of the recreational vehicle), and, if so, what is the name of such otherperson?

7. Subsequent to the time you received the 1999 Fleetwood Pace Arrow involved in thiscase, and prior to the time when said recreational vehicle was delivered to plaintiffs, whatadditional equipment or options were installed upon said recreational vehicle by you or at yourdirection or request, if any?

8. Was the recreational vehicle damaged prior to you receiving it, and, if so, what area of the recreational vehicle was damaged, when did you notice same, who first noticed it, and was itrepaired?

9. Was the recreational vehicle damaged while it was in your possession, and, if so, whatarea of the recreational vehicle was damaged, when did you notice same, who first noticed it, andwas it repaired?

10. What is the name, last known residential address, and job position with you (i.e.,salesperson, business manager, F&I person, sales manager, etc.) of all persons who have had anycontact or communication with plaintiffs, the date of each such contact and the purpose orsubject matter of each such contact?

8/3/2019 clp10_02


15

11. What is the name, business address, and job position with you, if any, of all non-expert person(s) who you expect, contemplate, or intend to have testify as witnesses at the trial orany hearing hereof?

12. What is the name, business address and employer of each person whom you intend to

call as an expert witness at the trial or any hearing hereof?

13. What is the subject matter upon which each person, identified in your answer toquestion 12 above, is expected to testify?

14. What opinions are held by each person, identified in your answer to question 12above, which are relevant to the subject matter upon which you identified in your answer toquestion 13 above?

15. At the time of sale to plaintiffs, what did the dealership employees say to them aboutthe prior use of the recreational vehicle?

16. At the time of sale to plaintiffs, did the dealership employees inform plaintiffs thatthe recreational vehicle had previously been repurchased by Fleetwood Enterprises, Inc., if so,what was said and by whom (name, address and phone number)?

17. On what date did you disclose to plaintiffs that the subject recreational vehicle hadbeen reacquired by Fleetwood Enterprises, Inc. from the original owner because of warrantynonconformities or claims of warranty nonconformities?

18. What instructions or procedures were communicated or given to RCD SalesCompany LTD regarding the process or procedure to follow in the retail resale of thisrecreational vehicle?

19. When and how was RCD Sales Company LTD first made aware that the recreationalvehicle involved in this case had been reacquired from its original owner by FleetwoodEnterprises, Inc. and what was said and by who?

20. What reason did Fleetwood Enterprises, Inc. give you for its repurchase of therecreational vehicle from the original owner?

21. When did RCD Sales Company LTD receive any instructions or procedures fromFleetwood Enterprises, Inc. to be followed in the retail resale of the recreational vehicle involvedin this case and what were the instructions or procedures that were communicated to RCD SalesCompany LTD?

22. How many reacquired recreational vehicles has RCD Sales Company LTD sold atretail prior to the one involved in this case, if RCD Sales Company LTD knows?

8/3/2019 clp10_02


16

23. Did Fleetwood Enterprises, Inc. ever instruct or advise RCD Sales Company LTD of the process or procedures to put in place for the resale of reacquired recreational vehicles byRCD Sales Company LTD?

24. When did RCD Sales Company LTD agree to purchase the subject recreational

vehicle from Fleetwood Enterprises, Inc. and how much did RCD Sales Company LTD agree topay for it?

25. What is every document that Fleetwood Enterprises, Inc. provided to RCD SalesCompany LTD when RCD Sales Company LTD purchased the recreational vehicle fromFleetwood Enterprises, Inc. and on what date was each such document delivered or provided toRCD Sales Company LTD?

26. On what date and at what time did RCD Sales Company LTD obtain the signature of any plaintiffs on the first document involved in the purchase of the subject recreational vehicleand what was the name of that document?

27. On what date and at what time did RCD Sales Company LTD obtain the signature of any plaintiffs on the financing agreement involved with the sale of the subject recreationalvehicle?

28. On what date and at what time and in what manner (i.e., by phone, in person, etc.)did RCD Sales Company LTD first advise plaintiffs that the subject recreational vehicle hadbeen reacquired by Fleetwood Enterprises, Inc. from its original owner because of warrantynonconformities or claims of warranty nonconformities and what was the name of RCD SalesCompany LTD employee who made such disclosure?

29. On what date and at what time did RCD Sales Company LTD first receive fromFleetwood Enterprises, Inc. the title to the subject recreational vehicle and what was the mannerof deliver of it?

30. Has RCD Sales Company LTD ever sold at retail a reacquired recreational vehiclebefore?

31. If the answer to the foregoing interrogatory is in the affirmative, then what was themake and model and year of the recreational vehicle involved and who was the buyer, where didthey reside, what was the name of each Dealer employee who was involved in that transaction,and do you still have records of that transaction?

32. What was the date and time when RCD Sales Company LTD first communicated toFleetwood Enterprises, Inc. any interest it had in acquiring the subject recreational vehicle fromFleetwood Enterprises, Inc., and the name of the dealership employee and the name of Fleetwood Enterprises, Inc. employee who communicated with each other on that first instance?

33. When RCD Sales Company LTD first communicated an interest in acquiring therecreational vehicle from Fleetwood Enterprises, Inc., what did Fleetwood Enterprises, Inc. say?

8/3/2019 clp10_02


17

PRODUCTION OF DOCUMENTS

The dealer is requested to produce a complete and accurate photocopy of such of thefollowing documents as may be in the dealer’s possession or otherwise accessible to the dealer in

the ordinary course of its business.

1. If RCD Sales Company LTD has access to it or can obtain same, a computer printoutor similar summary of the recreational vehicle repair history from the defendant dealer’s records,or similar data base or information system or file, including any maintained by dealer oraccessible to dealer, containing material related to the subject recreational vehicle including, butnot limited to, the Vehicle Warranty History.

2. All copies, front and back sides, of all copies of all repair orders or other similar suchdocuments or any related documents, including the “shop” copy, involved with the subjectrecreational vehicle.

3. If RCD Sales Company LTD has access to it or can obtain same, the “Product ServicePublications” Index or similar such document that is an index of all Technical or Dealer Servicebulletins issued by Fleetwood Enterprises, Inc. on the subject recreational vehicle.

4. If RCD Sales Company LTD is under any contractual relationship with FleetwoodEnterprises, Inc. of the 1999 Fleetwood Pace Arrow then produce such contract or similar suchdocument containing your agreement with Fleetwood Enterprises, Inc.

5. Any non-privileged correspondence with any other party to the litigation, includingplaintiffs, regarding the subject recreational vehicle.

6. Any correspondence with any private or third party dispute resolution systemregarding the subject recreational vehicle.

7. Any appraisal records on any trade-in recreational vehicle relevant to the lawsuit.

8. The vehicle inventory record (i.e., the “washout sheet”) for the subject recreationalvehicle and any trade-in recreational vehicle.

9. The contract of sale relevant to the subject recreational vehicle and the plaintiffs.

10. The deal worksheet relevant to the subject recreational vehicle and the plaintiffs.

11. A copy of every warranty or extended warranty or service contract RCD SalesCompany LTD entered into or otherwise made on the subject recreational vehicle.

12. Any records of inspection regarding the subject recreational vehicle other than thosewhich are not discoverable under the Ohio Rules of Civil Procedure.

8/3/2019 clp10_02


18

13. All documents, exhibits, evidence, or any thing which RCD Sales Company LTDintends to rely upon or otherwise introduce into evidence at any arbitration hearing, trial, or otherhearing in this case, whether or not RCD Sales Company LTD intends to or plans or anticipatesit may show such matter to the Court or Judge or jury or any witness, and which is not otherwisespecifically requested to be produced herein.

14. If RCD Sales Company LTD has access to it or can obtain same, then produceFleetwood Enterprises, Inc.’s invoice or similar such document itemizing the original factoryinstalled equipment on the subject recreational vehicle.

15. If RCD Sales Company LTD has access to it or can obtain same, then produce the“Service Policies and Procedures Manual”, or similar such document, for the 1999 FleetwoodPace Arrow involved in this case, effective when the recreational vehicle was sold to plaintiffs?

16. If RCD Sales Company LTD has access to it or can obtain same, then produce all“Technical Service Bulletins”, “Dealer Service Bulletins”, “Service Alert” documents,

“Management Service Bulletins”, “Dealer Technical Service Bulletins”, “Product CampaignService Bulletins” or similar such documents, for the 1999 Fleetwood Pace Arrow involved inthis case, or similar such documents.

17. All pre-delivery inspection procedure forms, or pre-retail sale inspection reports, orsimilar such documents, for the1999 Fleetwood Pace Arrow involved in this case.

18. The “Carrier Delivery Receipt”, or similar such documents for the 1999 FleetwoodPace Arrow involved in this case, or similar such writings dealing with acknowledgment by youof delivery of the subject recreational vehicle to you from the carrier which transported thesubject recreational vehicle or any other person who delivered possession of the subjectrecreational vehicle to RCD Sales Company LTD.

19. All documents related in any way to the plaintiffs or the specific 1999 FleetwoodPace Arrow involved in this case.

20. All non-privileged documents, writings, or other things or matters which bear thename of the plaintiffs and/or the VIN number of the recreational vehicle which is the subject of this case.

21. All documents related in any manner to any options or other equipment installedupon the subject recreational vehicle by RCD Sales Company LTD or at RCD Sales CompanyLTD direction or instruction or request.

22. RCD Sales Company LTD motor vehicle dealer license(s).

23. The motor vehicle salesperson license of all persons who dealt with plaintiffs.

8/3/2019 clp10_02


19

24. One original, of each different sales brochure, sales literature, sales pictures, videotape, or any other promotional literature produced for the model line, make and year of which thesubject recreational vehicle is a member.

25. All documents specifically relating to the subject recreational vehicle which RCD

Sales Company LTD received from, or sent to, Fleetwood Enterprises, Inc. at any time.

26. That portion of any policy and procedure manuals, customer relations manuals, andfield operations manuals, or similar such documents, regardless of title or name, which governedthe conduct of RCD Sales Company LTD and/or Fleetwood Enterprises, Inc. in the retail orwholesale sale of the recreational vehicle involved in this case.

27. All documents, exhibits, evidence, or any thing which RCD Sales Company LTDintends to rely upon or otherwise introduce into evidence at any arbitration hearing, trial, or otherhearing in this case, whether or not RCD Sales Company LTD intends to or plans or anticipatesit may show such matter to the Court or Judge or jury or any witness, and which is not otherwise

specifically requested to be produced herein.

ADMISSIONS

You are requested to admit that each of the following statements is true and accurate:

1. RCD Sales Company LTD has no evidence to dispute that plaintiffs acquired aninterest in the subject recreational vehicle for their personal, family or household use.

2. RCD Sales Company LTD was a supplier within the meaning of R.C. 1345.01(C) indealing with plaintiffs.

3. RCD Sales Company LTD was a merchant in dealing with plaintiffs.

4. RCD Sales Company LTD did engage in a consumer transaction with plaintiffs withinthe meaning of the Ohio Consumer Sales Practices Act with relation to the recreational vehicleinvolved in this case.

5. At the time RCD Sales Company LTD obtained the signature of plaintiffs on theBuyer’s Order for the purchase of the subject recreational vehicle, RCD Sales Company LTD didnot own the subject recreational vehicle.

6. RCD Sales Company LTD did distribute advertisements in the print and electronicmedia (i.e., television, radio and film) for the purpose of effecting or soliciting a consumertransaction.

7. After the delivery of the subject recreational vehicle to [Consumer 1 and Consumer 2],RCD Sales Company LTD did become aware that the recreational vehicle did not conform to thewarranty on it byRCD Sales Company LTD.

8/3/2019 clp10_02


20

8. [Consumer 1 and Consumer 2] did provide RCD Sales Company LTD with areasonable opportunity to repair the recreational vehicle.

9. RCD Sales Company LTD was unable to correct all malfunctions which [Consumer 1and Consumer 2] reported to exist in the subject recreational vehicle.

10. [Consumer 1 and Consumer 2] did notify RCD Sales Company LTD of themalfunctions in the subject recreational vehicle.

11. Prior to filing suit, [Consumer 1 and Consumer 2] did notify RCD Sales CompanyLTD that [Consumer 1 and Consumer 2] wanted RCD Sales Company LTD to take therecreational vehicle back and cancel the entire deal.

______________________________[Attorney for Plaintiffs]

8/3/2019 clp10_02


21

2.1.3 Discovery Directed to the Manufacturer



v.


Case No.

Judge


REQUESTS TO DEFENDANT FLEETWOOD ENTERPRISES, INC.

Plaintiffs submit the following Combined Discovery Request to Fleetwood Enterprises,Inc. to be answered in accord with the Rules of Civil Procedure and within 28 days after servicehereof.


DEFINITIONS


“Dealer” or “dealership” means RCD Sales Company LTD, its agents, representatives,officers, employees, attorneys or any other person purporting to act or acting on its behalf.

“Plaintiffs” means [Consumer 1 and Consumer 2], and/or plaintiffs’ agents,representatives, officers, employees, attorneys, or any other person purporting to act, or actingfor plaintiffs or on plaintiffs’ behalf.

“Sold”, “sale”, and “purchase” are phrases which, for the purpose of the below listedinquiries mean the transfer of title to the vehicle involved in this lawsuit, and includes the phrase“lease” for the limited purpose of this lawsuit.

“Subject vehicle” means the recreation vehicle which is the subject of this lawsuit, asfurther identified in the Complaint filed herein, being a 1999 Fleetwood Pace Arrow Class A.


INTERROGATORIES

1. What is the name of every person employed by the manufacturer who communicatedwith the plaintiffs about the vehicle?

8/3/2019 clp10_02


22

2. What is the name and business address of every person who Fleetwood Enterprises,

Inc. believes or knows to have inspected or repaired the subject vehicle at any time, and the dateand purpose of the inspection or repair?

3. What is the name, business address, and job position with you, if any, of eachManufacturer representative responsible for supervision of the resale of reacquired vehicles inthe state of Texas and Ohio from January 1, 2002 to the present date?

4. What is the name of every dealership or other person who has ever done any warranty-covered work, repair or service on the vehicle?

5. If there is any other person who Fleetwood Enterprises, Inc. knows has knowledge of any information that is relevant to the subject matter of this lawsuit, please list the names, homeaddress and home telephone number of those persons.

6. What is the name, business address and job position with you of the FleetwoodEnterprises, Inc. employee who decided to resell the subject vehicle after it was reacquired?

7. What is the name, business address, and job position with you, if any, of all person(s)who you know or believe have any personal knowledge of any facts relevant to this case?

8. What is the name, business address and employer of each person whom you intend tocall as an expert witness at the trial or any hearing hereof?



11. Do you know how many times did a manufacturer franchised dealer performwarranty repairs upon the subject vehicle (yes or no) and, if so, how many?

12. Do you know how many different parts were replaced on the subject vehicle prior tothe filing of this lawsuit (yes or no) and, if so, how many?

13. Do you know what is the total number of days the vehicle was out of service prior tothe filing of this lawsuit (yes or no) and, if so, how many?

14. When and why did Fleetwood Enterprises, Inc. reacquire the vehicle?

15. When and why did Fleetwood Enterprises, Inc. agree to sell the vehicle to the dealer?

8/3/2019 clp10_02


23

16. When did Fleetwood Enterprises, Inc. physically obtain the motor vehicle title andfrom who did they obtain it, and what steps did it take with the vehicle title to assure it wasretitled as required by Ohio law?

17. What sale instructions were given to RCD Sales Company LTD concerning any

possible retail sale of the subject vehicle by RCD Sales Company LTD, by who, and when weresuch instructions given or communicated?

18. When were procedures established by Fleetwood Enterprises, Inc. to assure that itsresale of reacquired motor vehicles would occur in compliance with the requirements of the OhioLaw and by who?

19. What are the procedures used by Fleetwood Enterprises, Inc. to assure that its resaleof reacquired motor vehicles would occur in compliance with the requirements of the Ohio Law(i.e., explain the steps in the procedure which Fleetwood Enterprises, Inc. uses)?

20. What forms are used by Fleetwood Enterprises, Inc. in the course of processing areacquired motor vehicle through Fleetwood Enterprises, Inc.’s resale process (i.e., the name of each form used at any step in the process), and who gets copies of each form after it iscompleted?

21. What is the name, address, and job position with you, of the person(s) who is incharge of assuring compliance with Fleetwood Enterprises, Inc.’s adopted resale process forreacquired motor vehicles?

22. Was each step of Fleetwood Enterprises, Inc.’s adopted procedure followed for theresale of the reacquired motor vehicle involved in this case and, if not, what step(s) were notfollowed and who was in charge of assuring compliance with each step that was not followed?

23. What was the price that RCD Sales Company LTD paid Fleetwood Enterprises, Inc.for ownership of the subject motor vehicle and when was it received by the FleetwoodEnterprises, Inc.?

24. How many motor vehicles did Fleetwood Enterprises, Inc. reacquire from owners inTexas during 2002 (or during the last time period for which such statistics were compiled and, inthat event, identify the time period) because of warranty nonconformities or claims of warrantynonconformities?

25. How many motor vehicles did Fleetwood Enterprises, Inc. reacquire from owners inOhio during 2002 (or during the last time period for which such statistics were compiled and, inthat event, identify the time period) because of warranty nonconformities or claims of warrantynonconformities?

26. How much did Fleetwood Enterprises, Inc. pay to the owner of the subject motorvehicle to reacquire it?

8/3/2019 clp10_02


24

27. How much, in total, did Fleetwood Enterprises, Inc. pay to owners in Texas of motorvehicles which it reacquired in 2002 (or during the last time period for which such statistics werecompiled and, in that event, identify the time period) because of warranty nonconformities orclaims of warranty nonconformities?

28. How much, in total, did Fleetwood Enterprises, Inc. pay to owners in Ohio of motorvehicles which it reacquired in 2002 (or during the last time period for which such statistics werecompiled and, in that event, identify the time period) because of warranty nonconformities orclaims of warranty nonconformities?

29. How much, in total, did Fleetwood Enterprises, Inc. receive from the resale of motorvehicles which it had reacquired in Texas in 2002 (or during the last time period for which suchstatistics were compiled and, in that event, identify the time period) because of warrantynonconformities or claims of warranty nonconformities?

30. How much, in total, did Fleetwood Enterprises, Inc. receive from the resale of motor

vehicles which it had reacquired in Ohio in 2002 (or during the last time period for which suchstatistics were compiled and, in that event, identify the time period) because of warrantynonconformities or claims of warranty nonconformities?


Manufacturer is requested to produce a complete and accurate photocopy of such of thefollowing documents as may be in the manufacturer’s possession or otherwise accessible tomanufacturer in the ordinary course of its business.

1. Produce all documents relating to the subject 1999 Fleetwood Pace Arrow Class Amotor vehicle, including, but not limited to, inspection reports, repair and service records,repurchase documents, written correspondence, sale documents or billing invoice(s), and/or anynotes of any communications between Fleetwood Enterprises, Inc. and RCD Sales CompanyLTD which involve the subject motor vehicle.

2. Please produce copies of all repair orders and other documents Fleetwood Enterprises,Inc. received from any Fleetwood Enterprises, Inc. dealer for any repairs made to the vehicle,including all copies of same.

3. Please produce copies of any letters or communications sent or made to anyoneconcerning any problems with the vehicle at any time.

4. All procedure manuals, customer relations manuals, and field operations manuals, orsimilar such documents, regardless of title or name, which governed the conduct of FleetwoodEnterprises, Inc. and RCD Sales Company LTD, in the repurchase and resale of the subjectvehicle.

5. The check or receipt or other evidence of payment by RCD Sales Company LTD toFleetwood Enterprises, Inc. for the ownership of the subject motor vehicle.

8/3/2019 clp10_02


25

6. Please produce copies of any notes relating to any telephone conversations concerning

any problems with the vehicle.

7. Please produce copies of all the documents Fleetwood Enterprises, Inc. received from

any dealer about the vehicle.

8. Please produce a copy of any written warranty or service agreement FleetwoodEnterprises, Inc. made which was ever applicable to the vehicle.

9. Please produce copies of all documents that evidence, reflect or relate to any defenseyou claim exists in this lawsuit.

10. Please produce copies of any documents that reflect any lack of routine maintenanceon the vehicle.

11. The procedures established by Fleetwood Enterprises, Inc. for the reacquisition of amotor vehicle from a consumer because of warranty nonconformities or complaints of warrantynonconformities.

12. The procedures established by Fleetwood Enterprises, Inc. for the resale of areacquired motor vehicle.

13. The procedures communicated to its authorized dealerships for the retail resale of areacquired motor vehicle.

14. All of the procedures, if different from the above requests, which were followed byFleetwood Enterprises, Inc., or communicated to RCD Sales Company LTD, in the reacquisitionand resale process involved with the motor vehicle in this case.

15. Fleetwood Enterprises, Inc.’s department or division organizational chart for thedepartment or division responsible for monitoring the reacquisition of motor vehicles byFleetwood Enterprises, Inc. because of warranty nonconformities or claims of warrantynonconformities, showing the names and job positions of all persons in the department ordivision.

16. One sample of each form used by Fleetwood Enterprises, Inc. or its employees ineach step of the procedure for the reacquisition of motor vehicles because of warrantynonconformities or claims of warranty nonconformities, that was in place in 2002.

17. A computer printout or similar summary of the subject vehicle’s warranty and repairhistory, warranty claims and payments or denials, and other computerized records or notes, fromthe manufacturer’s records, or similar data base or information system or file containing materialrelated to the subject vehicle or the plaintiffs.

8/3/2019 clp10_02


26

18. All recall and service campaign notices relating to any complaints plaintiffs madeabout the vehicle which are reflected on any Fleetwood Enterprises, Inc. dealer’s repair orders.

19. All Technical or Dealer Service bulletins issued by Fleetwood Enterprises, Inc. onthe subject vehicle relating to each condition or defect which was repaired or serviced according

to Fleetwood Enterprises, Inc.’s repair records or similar Vehicle Warranty History.

20. All documents, exhibits, evidence, or any thing which is relevant to this case or thevehicle or the plaintiffs and the plaintiffs’ complaints.

21. Fleetwood Enterprises, Inc.’s dealer invoice or similar such document itemizing theoriginal factory installed equipment on the subject motor vehicle.

22. If Fleetwood Enterprises, Inc. is claiming that the plaintiffs should have submittedthis warranty dispute to some form of dispute resolution mechanism, then produce all documentswhich constitute any part, or whole, of any agreement or memorandum of understanding which

was in force or in existence and applicable between Fleetwood Enterprises, Inc. and any entity towhich it submits itself for the purpose of arbitrating or resolving a customer disputes relating towarranty coverage of defects and/or malfunctions in its motor vehicles.

23. Any pre-litigation inspections, field service reports, universal data reports andtechnical inspections, and any evaluation as to whether the vehicle meets state or federal lemonlaws.

ADMISSIONS

The defendant Fleetwood Enterprises, Inc. is requested to admit that each of thefollowing statements is true and accurate:

1. Fleetwood Enterprises, Inc. has no evidence to dispute that [Consumer 1 andConsumer 2] acquired an interest in the subject motor vehicle for primarily personal, family andhousehold reasons.

2. Fleetwood Enterprises, Inc. was a supplier within the meaning of Revised Code1345.01(C), at all times relevant to this case.

3. Fleetwood Enterprises, Inc. did engage in a consumer transaction with [Consumer 1and Consumer 2] within the meaning of Revised Code 1345.01(A) and concerning the subjectmotor vehicle.

4. Fleetwood Enterprises, Inc. has no evidence to dispute that [Consumer 1 andConsumer 2] acquired an interest in the subject motor vehicle in reliance on the written warrantyfrom Fleetwood Enterprises, Inc.

5. Fleetwood Enterprises, Inc. did repurchase the subject vehicle from a previous ownerof the subject motor vehicle because of nonconformities with the vehicle.

8/3/2019 clp10_02


27

6. Fleetwood Enterprises, Inc. did sell the vehicle to RCD Sales Company LTD.

7. Fleetwood Enterprises, Inc. did inform RCD Sales Company LTD that the vehicle wasa repurchased vehicle.

8. Fleetwood Enterprises, Inc. did not instruct RCD Sales Company LTD of any specificprocedure for retail sale of a repurchased vehicles in Ohio.

9. Fleetwood Enterprises, Inc. does not have established procedures to assure that theretail resale of reacquired motor vehicles occurs in compliance with the requirements of localstate laws.

10. Fleetwood Enterprises, Inc. does have specific forms for retail dealerships to usewhen selling a reacquired motor vehicle.

11. Fleetwood Enterprises, Inc. has no reason to dispute that the subject motor vehiclewas regularly serviced and in all other respects was driven and maintained with proper andreasonable care by plaintiffs.

12. Plaintiffs did provide one or more Fleetwood Enterprises, Inc. authorized dealerswith an opportunity to repair the subject motor vehicle.

13. Plaintiffs did notify one or more Fleetwood Enterprises, Inc. authorized dealers of the malfunctions plaintiffs stated to exist in the subject motor vehicle prior to filing this lawsuit.

14. Prior to filing suit, plaintiffs did notify Fleetwood Enterprises, Inc. or one of itsdealers that plaintiffs wanted Fleetwood Enterprises, Inc. to take the vehicle back and cancel theentire deal.

15. Every Fleetwood Enterprises, Inc. dealer who performed any work or service on thevehicle was an authorized Fleetwood Enterprises, Inc. dealer for warranty repair work purposes.

16. The vehicle involved in this case was either manufactured or distributed byFleetwood Enterprises, Inc.

17. A copy of the Fleetwood Enterprises, Inc. Limited Warranty which was applicable tothe subject motor vehicle is in the possession of Fleetwood Enterprises, Inc.

_____________________________[Attorney for Plaintiffs]

8/3/2019 clp10_02


28

2.1.4 Discovery Directed to Bank



v.


Case No.

Judge


REQUESTS TO FIRSTMERIT BANK, N.A.

Plaintiffs submit the following Combined Discovery Request to Defendant FirstMeritBank, N.A. to be answered in accord with the Rules of Civil Procedure and within 28 days afterservice hereof.


DEFINITIONS


“Dealer” or “dealership” means RCD Sales Company, LTD, its agents, representatives,officers, employees, attorneys or any other person purporting to act or acting on its behalf.

“Financier” means FirstMerit Bank, N.A., its agents, representatives, officers, employees,attorneys or any other person purporting to act, or acting on its behalf.

“Plaintiffs” means [Consumer 1 and Consumer 2] or either of them, their agents,representatives, officers, employees, attorneys, or any other person purporting to act, or actingfor plaintiffs or on their behalf.

“Sold”, “sale”, and “purchase” are phrases which, for the purpose of the below listedinquiries mean the transfer of title to the motor home involved in this lawsuit.

“Subject motor home” means the motor home which is the subject of this lawsuit, asfurther identified in the Complaint filed herein.


INTERROGATORIES

8/3/2019 clp10_02


29

1. What is the name, business address, and job position with you of every person who isproviding the answers to these questions?

2. Where and when (i.e., the place, date and time) and by who (the name, last knownresidential address, and job position with you) was the approval made of the financing of the sale

of the 1999 Fleetwood Pace Arrow involved in this case?

3. Where and when (i.e., the place, date and time) and how (i.e., telephone, wire,personal application, fax, etc.) were you first contacted concerning the financing of the particularmotor home which is the subject matter of this action, and by who (the name, last knownresidential address and the job position of the person who contacted you)?

4. Where and when (i.e., the place, date and time) and by who (the name, last knownresidential address, and job position with you) were you told that the subject motor home waspreviously reacquired by Fleetwood Enterprises, Inc.?

5. How many Fleetwood Enterprises, Inc. reacquired motor homes have you financed inthe past two years?

6. Did RCD Sales Company, LTD finalize the financing of the 1999 Fleetwood PaceArrow involved in this case, with the plaintiffs, for you?

7. What is the name, business address, and job position with you of every person whohad any contact or communication with the [Consumer 1 and Consumer 2], and the date,approximate time, substance and manner (i.e., telephone, in person, by letter, etc.) of each suchcontact or communication?

8. What is the name, business address, and job position with you, if any, of all nonexpertperson(s) who you expect, contemplate, or intend to have testify as witnesses at the trial or anyhearing hereof?

9. What is the name, business address and employer of each person whom you intend tocall as an expert witness at the trial or any hearing hereof?



12. What was the amount of consideration which you gave or paid for the assignment orother transfer of the finance agreement for the subject motor home involved in this case, whenyou acquired it?

8/3/2019 clp10_02


30

13. When the contract was being consummated between RCD Sales Company, LTD and[Consumer 1 and Consumer 2], had you authorized the employees of RCD Sales Company, LTDto say anything on your behalf or about the financing of the motor home, and if so, what?

14. Do you have any record or notes or similar such documents or writings, which

contain information related to the receipt by you of the first contact from RCD Sales Company,LTD regarding [Consumer 1 and Consumer 2] and the desire by RCD Sales Company, LTD orplaintiffs to arrange for the financing of the motor home with your participation or assistance?

15. If your answer to the foregoing question is in the affirmative, what is the name, lastknown residential address, and job position with you of the person who has control and/orpossession of the documents referred to in question 14?

16. In regard to the 1999 Fleetwood Pace Arrow involved in this case, what is thenumber of times you, or anyone acting on your request, serviced, repaired, inspected orotherwise worked on the motor home, if any?


The financier is requested to produce a complete and accurate photocopy of such of thefollowing documents as may be in the financier’s possession or otherwise accessible to thefinancier in the ordinary course of its business.

1. Any documents which bear the signature of the plaintiffs and relate to the subjectmotor home.

2. A computer printout or other summary showing the loan history over (a) the life of theloan if all payments are timely made in the future and showing all payments previously made inthe past and the application of each payment toward principal or interest, etc., and (b) the balanceremaining after each monthly payment (assuming it is timely made) for the life of the loan.

3. The interest rate dealer reserve schedule, or similar guideline, applicable between thefinancier and the retail seller of the subject motor home on July 27, 2002.

4. A computer printout or similar summary of the loan or contact history from thefinancier’s records, or similar data base or information system or file containing material relatedto the subject motor home loan including, but not limited to, any telephone or other contactsbetween the financier and [Consumer 1 and Consumer 2] regarding the subject motor home’sloan.

5. Any non-privileged correspondence with any other party to the litigation, includingplaintiffs, regarding the subject motor home.

6. Any correspondence with any private or third party dispute resolution systemregarding the subject motor home.

8/3/2019 clp10_02


31

7. Any appraisal records on any trade-in motor home relevant to the lawsuit.

8. The finance contract, aka retail instalment sales contract, or similar such loanagreement relevant to the subject motor home and the plaintiffs and the financier.

9. Any records of inspection regarding the subject motor home other than those whichare not discoverable under the Ohio Rules of Civil Procedure.

10. Plaintiffs’ credit application relevant to the subject motor home and the plaintiffs.

11. All documents, exhibits, evidence, or any thing which the financier intends to relyupon or otherwise introduce into evidence at any arbitration hearing, trial, or other hearing in thiscase, whether or not the financier intends to or plans or anticipates it may show such matter tothe Court or Judge or jury or any witness, and which is not otherwise specifically requested to beproduced herein.

12. The “Financing Policies and Procedures Manual”, or similar such instructional orguiding document, applicable on July 27, 2002 between you and RCD Sales Company, LTD.

13. The “Dealer Financing Agreement”, or similar such document dealing with therelationship between RCD Sales Company, LTD and you and applicable on July 27, 2002.

14. All non-privileged documents or matters which bear the Vehicle IdentificationNumber of the subject motor home.

15. All documents related to or in explanation of the basis upon which you or RCD SalesCompany, LTD determined the terms of financing or leasing which would be offered to orconsummated with plaintiffs.

16. Your register of receipt of credit applications, credit inquiries, or any similar suchlog, ledger or document which notes the precise time and date and manner (i.e., telephone, fax,etc.) that the credit application, extension of credit and instalment loan in this case was firstreceived by you.

ADMISSIONS

You are requested to admit that each of the following statements is true and accurate:

1. FirstMerit Bank, N.A. did finance the 1999 Fleetwood Pace Arrow sold to [Consumer1 and Consumer 2] involved in this case.

2. The obligation of [Consumer 1 and Consumer 2], if any exists, to make any paymentson the finance agreement with FirstMerit Bank, N.A. is subject to all claims or defenses whichplaintiffs may have against RCD Sales Company, LTD arising out of the sale of the subjectmotor home in this case.

8/3/2019 clp10_02


32

3. FirstMerit Bank, N.A. does not dispute that [Consumer 1 and Consumer 2] acquiredan interest in the subject motor home or primarily personal, household or family reasons.

4. FirstMerit Bank, N.A. was a creditor within the meaning of the Truth in Lending Acton July 27, 2002 in its dealings with [Consumer 1 and Consumer 2]

5. At the time FirstMerit Bank, N.A. approved the financing of the subject motor home,it knew that [Consumer 1 and Consumer 2] purchased an interest in the 1999 Fleetwood PaceArrow involved in this case in reliance on the existence of a warranty from FleetwoodEnterprises, Inc..

6. After the sale and delivery of the subject motor home to [Consumer 1 and Consumer2], FirstMerit Bank, N.A. did become aware that the motor home did not conform to thewarranty given by Fleetwood Enterprises, Inc. on the subject motor home.

7. At the time FirstMerit Bank, N.A. knew that the 1999 Fleetwood Pace Arrow had

been previously reacquired by Fleetwood Enterprises, Inc..

8. FirstMerit Bank, N.A. did have notice of the malfunctions in the subject motor homebefore this lawsuit was filed.

9. Prior to the filing of this suit, FirstMerit Bank, N.A. did have notice that [Consumer 1and Consumer 2] wanted to cancel the entire transaction involving the 1999 Fleetwood PaceArrow involved in this case.

10. RCD Sales Company, LTD represented FirstMerit Bank, N.A. in the dealings with[Consumer 1 and Consumer 2] that directly involved the consummation of the finance contractrelated to the 1999 Fleetwood Pace Arrow involved in this case.

11. FirstMerit Bank, N.A. provided RCD Sales Company, LTD with blank personal loanagreement and/or retail instalment sales contract and/or motor home lease agreement forms fromFirstMerit Bank, N.A. and/or one or more of the subsidiaries of FirstMerit Bank, N.A. and whichbore the name of FirstMerit Bank, N.A. on them, during or prior to the calendar year in which[Consumer 1 and Consumer 2] acquired an interest in the 1999 Fleetwood Pace Arrow involvedin this case.

12. [Consumer 1 and Consumer 2] does not have to make any more payments on thefinance contract with FirstMerit Bank, N.A..

13. FirstMerit Bank, N.A. legally stands in the same position as RCD Sales Company,LTD with regard to all rights which [Consumer 1 and Consumer 2] may have against RCD SalesCompany, LTD.


8/3/2019 clp10_02


33

2.1.5 Second Document Request to Dealer



v.


Case No.

Judge

SECOND REQUEST FOR DOCUMENTS PRODUCED BY RCD SALES COMPANY,

LTD.

Defendant RCD Sales Company, LTD is requested to produce the documents describedbelow within 28 days of service hereof and otherwise in accord with the Rules of CivilProcedure.

REQUEST TO PRODUCE

1. The “buyers order” or similar sales contract between the dealership and William F.

Melick, for a certain 1996 Coachman vehicle believed to have been sold between July 1, 2002and August 20, 2002, and bearing VIN No. [redacted] with a mileage of 29,490 miles reportedon the odometer statement.


8/3/2019 clp10_02


34

2.1.6 Second Set of Discovery to Manufacturer



v.


Case No.

Judge

SECOND SET OF ADMISSIONS AND DOCUMENT REQUESTS TO DEFENDANT

FLEETWOOD ENTERPRISES, INC.

Plaintiffs submit the following Second Set of Admissions and Document Requests toDefendant Fleetwood Enterprises, Inc. to be answered in accord with the Rules of CivilProcedure and within 28 days after service hereof.


DEFINITIONS

“Subject vehicle” means the recreation vehicle which is the subject of this lawsuit, asfurther identified in the Complaint filed herein, being a 1999 Fleetwood Pace Arrow Class A.


REQUEST FOR PRODUCTION OF DOCUMENTS

Fleetwood Enterprises, Inc. is requested to produce a complete and accurate photocopy of the following documents.

1. Produce a complete and accurate copy of all documents, complete with all attachmentsthereto, that were received by Fleetwood Enterprises, Inc. or its attorneys and which wereitemized on the attached exhibit 1.


8/3/2019 clp10_02


35


4. Produce a complete and accurate copy of all documents, complete with all attachments

thereto, that were received by Fleetwood Enterprises, Inc. or its attorneys and which wereitemized on the attached exhibit 4.



7. Produce a complete and accurate copy of every Expert Witness Designation, completewith all attachments thereto, which was made by Fleetwood Enterprises, Inc. or its attorneys inthe case of Jansen, et al vs DeMontrond Automotive, et al, Case No. 2000-37061, in the DistrictCourt of Harris County, Texas.

8. Produce a complete and accurate copy of every photograph which FleetwoodEnterprises, Inc. has and which was taken of the subject vehicle at any time by any person.

REQUEST FOR ADMISSIONS

The defendant Fleetwood Enterprises, Inc. is requested to admit that each of thefollowing statements is true and accurate:

1. Fleetwood Enterprises, Inc. or its attorneys did receive each of the five discoverydocuments which are itemized on the attached exhibit 1.

2. Fleetwood Enterprises, Inc. or its attorneys did receive the discovery document whichis itemized on the attached exhibit 2.

3. Fleetwood Enterprises, Inc. or its attorneys did receive each of the eight discoverydocuments which are itemized on the attached exhibit 3.



6. Fleetwood Enterprises, Inc. or its attorneys did receive each of the eight discoverydocuments which are itemized on the attached exhibit 6.

8/3/2019 clp10_02


36

7. Fleetwood Enterprises, Inc. or its attorneys did receive the attached exhibit 7.

8. Fleetwood Enterprises, Inc. or its attorneys did file the attached exhibit 8 in the case of Jansen, et al vs DeMontrond Automotive, et al, Case No. 2000-37061, in the District Court of

Harris County, Texas.

9. Fleetwood Enterprises, Inc. or its attorneys did receive the attached exhibit 9.

10. Fleetwood Enterprises, Inc. or its attorneys did file the attached exhibit 10 in the caseof Jansen, et al vs DeMontrond Automotive, et al, Case No. 2000-37061, in the District Court of Harris County, Texas.

11. The attached exhibit 8 was not accidentally filed in the case of Jansen, et al vsDeMontrond Automotive, et al, Case No. 2000-37061, in the District Court of Harris County,Texas.

12. The attached exhibit 10 was not accidentally filed in the case of Jansen, et al vsDeMontrond Automotive, et al, Case No. 2000-37061, in the District Court of Harris County,Texas.


8/3/2019 clp10_02


37

2.1.7 Client Letter re Settlement

May 17, 2004

[Consumer]

Dear [Consumer]:

As we start handling the settlement aspects of your case for you I want to take a moment toexplain again two aspects of the way we normally handle settlement negotiations. Ourexperience tells us that to get what you want, we have to ask for more than what you really want,but still seem reasonable. We do this two ways.

First, whenever we send out a settlement demand, our practice is to ask for slightly more thanyou really want, so that we have “room” to negotiate down a little and still end up where you

actually want to be. The “extra” amount we include varies from case to case and depends onmany factors, including how strong we feel your case is, how hard we may have to fight for you,who the defendant is, our experience with the defense attorney and many other factors. It isalways a judgment call that we make when the settlement demand is compiled but the objectiveis to settle your case for what you want, as quickly and easily as we can.

Second, whenever we send out a settlement demand, our practice is to include a request that thedefendant pay you first, then to pay the legal costs, and then to also make an additionalcontribution to a non profit consumer protection organization. The amount of the contributionthat is requested varies from case to case and, again, depends on many of the same factors,including whether or not the defendant has done something wrong in your case that they have

done before or to other people. This “extra” amount is on top of what you get first, and none of itgoes to you or to us. Typically it is donated to groups like the Legal Aid Society or the NationalConsumer Law Center (www.ConsumerLaw.org) or the National Association of ConsumerAdvocates (www.Naca.net) and can be used to fund their education and training efforts for thebenefit and protection of other consumers like yourself.

Of course, defendants usually do not want to pay all of what they should. That just seems to bethe way they are. With our way of handling settlement negotiations, we believe we have a betterchance of expediently and efficiently getting you the result that you deserve. If you do not wantus to follow this approach in our handling of your case, just say so. Otherwise, we will take thisapproach in order to get you the best result we can, as fast as we can. As always, if you have anyquestions at any time, just let us know. Thank you.

Sincerely,

[Attorney for Consumer]

8/3/2019 clp10_02


38

2.1.8 Settlement Letter

January 7, 2004

[Attorneys for Defendants]

Re: [Consumer 1], et al., v. Fleetwood Enterprises, Inc., et al., Settlement

Gentlemen:

My clients have reviewed the settlement offer received from [Attorney for Defendants] onDecember 15 and, after further discussions with me, have asked me to respond. My offer lastOctober was an attempt to amicably resolve this dispute early in this fee-shifting case. TheDecember 15 offer is inadequate and is rejected.

The defendants should not doubt the resolve my clients have in this matter or my willingness toproceed to trial. Fleetwood is well aware that my negotiation “style” is not to start high andnegotiate downward as though this case were a personal injury case. For years I have alwaysstrived to present the best offer that I can and, thereafter, the numbers only go up to reflect thecontinued damages, inconvenience, and expenses that my clients incur due to the defendants’recalcitrant approach to settlement. Still, my clients are willing to continue efforts to resolve thedispute amicably.

Please be advised that I have authority to settle this case right now as follows:

1. Defendants would take back the RV and pay off the full amount of the balance owed

on it as of today and hold plaintiffs harmless from any financial obligation on the loan; and

2. The title to the RV would be labeled as a “Lemon Law Buyback” under the Ohiostatute before any resale of the unit; and

3. The defendants would pay to plaintiffs the total amount of $49,936.76 in the form of four checks made payable as follows:

a. One check in the amount of $21,693.28 made payable to “[Consumer 1 andConsumer 2]”; and

b. One check in the amount of $6,743.48 made payable to “[Attorney forPlaintiffs]”; and

c. One check in the amount of $9,000 made payable to “[Plaintiffs’ Attorney TrustAccount]” which shall be subsequently disbursed to one or moreconsumer-protection non-profit corporations as a cy pres payment; and

d. One check in the amount of $12,500 made payable to “[Plaintiffs’ Attorney TrustAccount]” which shall be subsequently disbursed to the Ohio Attorney General’sConsumer Protection Fund as a cy pres payment (informationally, this amount is

8/3/2019 clp10_02


39

one half of the amount which the Attorney General can assess against either orboth defendants under R.C. 1345.05, not including its legal fees and costs); and

4. The pending lawsuit would be dismissed under a Stipulated Judgment Entry of dismissal with prejudice and which would state that the defendants will pay all court costs and

which would also contain the following findings of law by the Court, and which neitherdefendant would admit to having done but which both defendants would agree they would not doin the future (i.e., in the vein of a “consent decree”):

a. In the case of the first retail sale of a reacquired motor vehicle in Ohio, the failureof a manufacturer or distributor to provide a written warranty with the vehicle inthe form and manner required by R.C. 1345.76(A)(1), is an unfair act in violationof R.C. 1345.02(A), and

b. In the case of the first retail sale of a reacquired motor vehicle in Ohio, the failureto provide to the first retail purchaser, prior to the signing of any document for thesale of the vehicle, the separate written statement which is required by R.C.

1345.76(A)(2), is an unfair act in violation of R.C. 1345.02(A), andc. In the case of the first retail sale of a reacquired motor vehicle in Ohio, where thefirst retail purchaser is provided, prior to the signing of any document for the saleof the vehicle, the separate written statement which is required by R.C.1345.76(A)(2), the failure to cause the first word printed on the separate writtenstatement to be the word “WARNING” printed in at least ten point type in allcapital letters, is an unfair act in violation of R.C. 1345.02(A), and

d. Upon resale of the vehicle by a manufacturer or distributor, if the manufacturer ordistributor knows or should know that the purchaser of the vehicle from themanufacturer or distributor resides in or does business in Ohio, then the failure of the manufacturer or distributor to communicate a written instruction to thepurchaser that states that the purchaser is required by the manufacturer ordistributor to communicate a written instruction to the first retail seller of thevehicle that states that the first retail seller of the vehicle is required by themanufacturer or distributor to obtain the signature of the first retail purchaser onthe separate written statement which is required by R.C. 1345.76(A)(2) and that acopy of that signed form is to be given to the retail purchaser at the time of signing and that a copy of it is to be returned to the manufacturer or distributorupon completion of the sale and that a copy of it is to be retained by the first retailseller of the vehicle, is an unfair act in violation of R.C. 1345.02(A), and

e. Upon resale of the vehicle by the manufacturer or distributor, if the manufactureror distributor knows or should know that the purchaser of the vehicle from themanufacturer or distributor resides in or does business in Ohio, then the failure of the manufacturer or distributor to have the vehicle’s title branded as required byR.C. 1345.76(C), is an unfair act in violation of R.C. 1345.02(A), and

f. Whenever the manufacturer or distributor is required to use, or does use, theseparate written statement which is required by R.C. 1345.76(A)(2), the additionof any words to the language recited in the form proposed in the statute, is anunfair act in violation of R.C. 1345.02(A) except where those added words merelyidentify the name and address and contact information for the manufacturer or

8/3/2019 clp10_02


40

distributor who reacquired the vehicle or any person who acquired ownership of the vehicle after the manufacturer or distributor reacquired the vehicle and beforethe time of the first retail sale of the vehicle, and

g. The failure of a manufacturer or distributor of a reacquired motor vehicle toestablish and maintain reasonable procedures to assure that the first retail

purchaser of a reacquired motor vehicle will be provided a written warranty withthe vehicle in the form and manner required by R.C. 1345.76(A)(1), is an unfairact in violation of R.C. 1345.02(A), and

h. The failure of a manufacturer or distributor of a reacquired motor vehicle toestablish and maintain reasonable procedures to assure that the purchaser from itof a reacquired motor vehicle will comply with its instructions that the first retailpurchaser of a reacquired motor vehicle will be provided a written warranty withthe vehicle in the form and manner required by R.C. 1345.76(A)(1), is an unfairact in violation of R.C. 1345.02(A), and

i. The failure of a manufacturer or distributor of a reacquired motor vehicle toestablish and maintain reasonable procedures to assure that it independently

contacts in writing the first retail purchaser of a reacquired motor vehicle, within90 days of having knowledge of the existence of the first retail sale of saidvehicle, and provide written notice to the first retail purchaser that the reacquiredmotor vehicle was reacquired by the manufacturer or distributor under theprovisions of a state Lemon Law, is an unfair act in violation of R.C. 1345.02(A),and

j. The failure of a manufacturer or distributor of a reacquired motor vehicle toestablish and maintain reasonable procedures to assure that, upon the first contactor communication it receives from any person asserting an ownership interest in amotor vehicle that was previously reacquired by the manufacturer or distributorwithin 3 years preceding the receipt of the contact, the manufacturer or distributorprovides notice to the inquiring person that the subject motor vehicle waspreviously reacquired by the manufacturer or distributor under the provisions of astate Lemon Law, is an unfair act in violation of R.C. 1345.02(A), and

k. The failure of a manufacturer or distributor to comply with R.C. 1345.72 is anunfair act in violation of R.C. 1345.02(A), and

l. The failure of a manufacturer or distributor to comply with R.C. 1345.74 is anunfair act in violation of R.C. 1345.02(A), and

m. The failure of a manufacturer or distributor to comply with R.C. 1345.76 is anunfair act in violation of R.C. 1345.02(A).

5. Plaintiffs will sign a general release in favor of all defendants and which would notcontain a confidentiality clause; and

6. Plaintiffs are willing to sign a confidentiality clause in favor of the defendants for theadditional payment of $5,000 in the form of one check made payable to “[Consumer 1 andConsumer 2]”; and

7. Settlement is subject to consummation within 30 days; this means that all checks mustbe delivered to my office within 30 days after acceptance of this offer or my clients reserve the

8/3/2019 clp10_02


41

option of electing to enforce the settlement agreement or to declare it null and void ab initio andthe case would go right back to where it was, time being of the essence of any settlement of thiscase ever agreed upon between the parties.

This offer is open no more than 10 days from the date of this letter or until such time as any party

files any pleading in the pending lawsuit, whichever occurs first. Please consider and promptlyadvise.

Thank you.Sincerely,

[Attorney for Plaintiffs]

8/3/2019 clp10_02


42

2.1.9 Mediation Presentation (PDF format)

8/3/2019 clp10_02


MediationConference

Cynthia & Robert Love vs Fleetwood & RCD Sa

Texas Courthouse

8/3/2019 clp10_02


Facts

1999 Fleetwood Pace Arrow Class ABought back under Lemon Law: “lemon”

Multiple Repair Attempts, “DeadlyDefect”, and Days Out of Service

Illegal to ReSell “Deadly Defect” Vehicle

Buyback “in this or any other state”: Written Disclosure Notice Required

No Resale of “Deadly Defect” Vehicle

8/3/2019 clp10_02


History of Vehicle – Part 1

Manufactured on Friday, June 25, 1999 31 Defects in Production (3 still not fixed atdelivery to dealer)

Sold New in Texas Sept. 1, 1999

Dozens of Defects

Texas Lawsuit Filed July 25, 2000Texas Replacement Rv Agreed to in March

2001

8/3/2019 clp10_02


History of Vehicle – Part 2

Sent to Fleetwood in Indiana May 2001 Over 90 Repairs Listed

Fleetwood Sold it to RCD Sales July 2002

Love’s saw it mid July “Here on consignment from a Widow”

RCD Sales sold it to Plaintiffs July 26, 2002 “Only 2 problems and they were fixed”

8/3/2019 clp10_02


Vehicle’s DefectsOriginal Owner had defects

Love’s had some of the same and moreVehicle has had 6 repeat defects

Leveling Jack System, 5 times

Generator, 7 times

Water Heater, 6 timesVehicle has had one “deadly” defect

experienced by both owners

Defects still exist

8/3/2019 clp10_02


ClaimsConsumer Act (Lemon Law Violation)

FleetwoodMagnuson Moss Warranty Act

Fleetwood

Consumer Act Fleetwood and RCD Sales

Motor Vehicle Sales Rule RCD Sales

Fraud Fleetwood and RCD Sales and Bank

8/3/2019 clp10_02


RemediesMagnuson Moss Act

Difference in Value, at Date of Sale

Consumer Act: Triple Actual Damages Mandatory

+ Statutory Damages

Commercial Code: Actual Damages Difference in Value, at Date of Sale

Fraud: Punitive Damages Amount ?

8/3/2019 clp10_02


Actual DamagesDifference in Value at Date of Sale

Sale Price: 69,995 Contract Amount

Vehicle Value: 0 Illegal to Sell it

Difference in Value: 69,995

8/3/2019 clp10_02


3x Actual Damages

Difference in Value: 23,000

Mandatory Triple Damages = 69,000 And Love’s Keep Rv

8/3/2019 clp10_02


Punitive Damages

To Discourage OthersAmount: Fair and Reasonable

Consider: Egregiousness of Conduct

Pattern of Conduct

Financial Profit of Conduct

Financial Standing of Defendant

8/3/2019 clp10_02


Financial StatementsFinancial Status of Each Defendant

In determining what amount of punitive damages are appropriatyou may consider the defendant’s financial status, the defendanFederal and state income tax returns, and the defendant’s financstatements and balance sheets. Toledo Fair Housing Center v NationwMutual Ins. Co. (Lucas Co. C.P., 1996), 94 O.Misc.2d 17

Evidence of the financial condition of the defendant may beconsidered by you in determining the amount of punitive damagto be allowed and what amount of punishment would be inflictethereby on the theory that the allowance of a given sum would bgreater punishment to a man of small means than to one possesslarger wealth. Wagner v McDaniels (1984), 9 O.St.3d 184

8/3/2019 clp10_02


Fees Issue

At Trial: Bifurcated from the Merits Plaintiff has to prevail first

At Settlement: Package Deal Entire case must be settled at once

8/3/2019 clp10_02


Next StepsPlaintiffs remain willing to talk

Defendants always playing “catch up”

March 3, 2004 Pre Trial Plaintiffs made offer

Defendants counter offered

Plaintiffs countered back

Defendants stopped discussions

8/3/2019 clp10_02


The pieces of a settlement will fall into place

Only when the defendants finally realize that settlement

Is cheaper than the Verdict will be.

8/3/2019 clp10_02


43

2.1.10 Trial Chart re Parts and Labor Comparison

DATE

Defect Labor

Codes

Defect Part

Codes

11.08.99 X RV Sells RVNew to First Owner

12.16.98 64T20007 0k08x-64-420a70

04.29.99 18J03001 uk011-18-520a

06.22.99 37r01011 0k081-56-903b

06.22.99 33n02002b 0k081-33-020

06.22.99 33n02002b 0k081-33-030

06.22.99 33n02002b 0k01a-33-047 (2)

06.22.99 33n02002b 0k011-33-067 (2)

06.22.99 33n02002b 0k01a-33-075 (2)

06.22.99 33n02002b 0k01a-33-20xa (2)

06.22.99 33n02002b wpso wpso

****(more)****

01.05.00 X RVAgrees to

Buy Back RV

Melanie Smith

Defect Labor

Codes

Defect Part

Codes

08.11.00 X RV Sells RV to

Melanie Smith

11.15.00 31cvz 0k08b-18-861b

11.15.00 31cvz1 0k012-32-611

11.15.00 31cvz1 ok65b-15-907c

11.15.00 31cvz1 ok2aa-15-907

11.15.00 39cvz 0k01w-40-100d

11.15.00 39cvz 0k203-40-305a (2)

11.15.00 41cvz 0k019-58-560b

11.15.00 41cvz 0k019-58-605b

8/3/2019 clp10_02


44

2.2. Rebuilt Wreck Complaint

IN HAMILTON COUNTY COMMON PLEAS, COURT OHIO

[CONSUMER], ET AL,Plaintiffs,

v.

WALT SWEENEY FORD, INC., ET AL,Defendants.

Case No.

AMENDED COMPLAINT AND JURY DEMAND WITH REQUEST FOR SERVICE

FIRST CLAIM: CONSUMER ACT

1. This case involves a tangled web of deceit in the sale of what is believed to be apreviously wrecked 2002 Ford Mustang with nearly 12,000 miles, which Defendant WaltSweeney Ford, Inc.

25said was a “one owner” and “garage kept” and that it had “never been in

rain, sleet, hail or snow” but in truth was nothing but a used rental car that was owned by HertzRental Company26 and that had been wrecked, damaged and repaired. When they found out thetruth, Plaintiffs complained to the dealer about the lies they had been told, but they got nowhere.

2. Before the sale, Plaintiffs saw the Dealer’s advertisements on T.V. which stated thatall consumers were “guaranteed credit” and they called the Dealer about getting a vehicle. That

representation was important to them in selecting this Dealer to purchase a vehicle from.3. The Dealer called back later and said that the Plaintiffs qualified for a Ford Focus or aFord Windstar, but the Plaintiffs did not want either of those vehicles. A few days later, theDealer called again and said it had found a white Ford Mustang and told the Plaintiffs to comedown and sign the paperwork and they could have it.

4. The Plaintiffs arrived at the Dealer and saw the 2002 Ford Mustang which the Dealerended up selling to them for a total of $15,549.41. In the process the Dealer told them theMustang was a garage-kept, “one owner” vehicle and that the owner just wanted to get into abigger car, and represented in writing that the value of the vehicle was $15,985 27. As they werediscussing the sale, the Dealer told them that their trade in was actually worth only $4,200.00.When Plaintiffs inquired about the Mustang’s low mileage the Dealer told them they were

“taking a loss on it” in order to sell the vehicle to Plaintiffs. Each representation was important toPlaintiffs in deciding on the purchase and the price they would be willing to pay to acquire the

25 Hereinafter referred to as “Dealer”.26 Failure to disclose the vehicle’s prior rental car status is a violation of the Consumer Sales Practices Act and theMotor Vehicles Sales Rule. See, e.g., State ex rel Fisher v. Rose Chevrolet (1992), 82 OApp3d 520, 612 NE2d 782; McCullough v. Spitzer Motor Center, Inc. , (8th Dist.), 1994 Ohio App. LEXIS 26227 See the “Kelley Blue Book” vehicle window sticker attached.

8/3/2019 clp10_02


45

vehicle. None of these representations were written into the sales paperwork, contrary to therequirements of the law, and that was unfair to Plaintiffs.28

5. The Dealer represented to Plaintiffs that the vehicle was still covered by the time andmileage balance of the manufacturer’s original 3 year/36,000 mile warranty and also came withan additional warranty from the Dealer itself for 13 months/13,000 miles and which would cover

“100% of parts and labor”

29

. That representation was important to Plaintiffs in deciding toacquire the vehicle. However, Plaintiffs were not given a copy of the Dealer’s warranty whichcontained all the information and terms required by law and that was unfair to Plaintiffs.30

6. Three months later, the Plaintiffs took their vehicle into the Dealer for repair of theheadlights under warranty. The Dealer told Plaintiffs that the repairs would not be covered byany warranty, including the Dealer’s own warranty, saying that the vehicle had been in anaccident and the accident is what caused the damage to the headlight, even though nothing in theDealer’s own warranty contained such an exclusion of coverage, and that was unfair toPlaintiffs.31

7. Plaintiffs immediately complained to the Dealer salesperson about the lies he toldthem and at first the salesman claimed to have told Plaintiffs it had been wrecked. When

Plaintiffs insisted that they had never been told that this vehicle had been wrecked and that theywould not have bought it if they had known, the Dealer’s salesman admitted it, saying “I didn’ttell you that.”

8. This first claim is for violation of the Consumer Sales Practices Act32 by the Dealerand for which Drive Financial Services, L.P. is derivatively liable by operation of law33 and bythe express terms of the contract34 between the parties.


10. At all times relevant, Plaintiffs were each a consumer.35 11. At all times relevant, the Dealer did business as Walt Sweeney Ford and Walt

Sweeney Automotive, and was and is a corporation and a supplier36 and merchant37, and in thebusiness of selling and arranging for the financing of agreements relating to the sale of motorvehicles, and rendering advice and counsel to consumers with regard to and in relation to same,all within the jurisdiction of this Court.

28The Motor Vehicle Sales Rule, O.A.C. 109:4-3-16(B)(22), requires that all material oral representations beintegrated into the sales agreement.29See the “Kelley Blue Book” vehicle window sticker attached.30As previously held by this Court in Brown v Wells, No. A 8208876 (CP, Hamilton, 12-27-82).31The act of failing to honor a warranty has been held to violate the Consumer Act. See, e.g., State ex rel Fisher vs

Buckeye Home Improvements (C.P. Franklin Co. 5-28-93), 1993 WL 840677, OH AG PIF# 1352.32R.C. 1345.01 et seq., and hereinafter referred to as the Consumer Act.3316 CFR 433.1 et seq.34

The retail instalment contract which the financier holds, and under which the Plaintiffs make their monthlypayments to the financier, contains the following term: “ANY HOLDER OF THIS CONSUMER CREDIT

CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT

AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE

PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED

AMOUNTS PAID BY THE DEBTOR HEREUNDER.” This term makes the financier also liable for Plaintiffs’damages.35Within the meaning of R.C. 1345.01(D).36Within the meaning of R.C. 1345.01(C).37Within the meaning of R.C. 1302.01(A)(5).

8/3/2019 clp10_02


46

12. At all times relevant, Defendant Drive Financial Services, L.P. was and is a limitedpartnership and financing agency38, engaged in the business of financing the sale of motorvehicles to Ohio consumers for said consumers’ personal use, and was a creditor doing businesswithin the jurisdiction of this Court.

13. The retail instalment contract between Plaintiffs and the Dealer was assigned to the

Financier. As a result, the Financier “stands in the shoes” of the Dealer for all legal purposes.

39

Plaintiffs’ obligation to pay the Financier under the contract between them is subject to all claimsand defenses which Plaintiffs have against the Dealer, as are alleged more specifically below,and defendant Financier is not a holder in due course of any instrument signed by Plaintiffs.

14. Defendant Dealer is a motor vehicle dealer obligated to deal with Plaintiffs in goodfaith40 in all respects.

15. On or about November 22, 2003 the parties entered into a consumer transaction41, inthat Plaintiffs agreed to purchase a certain motor vehicle from the Dealer and the Dealer agreedto sell that vehicle to Plaintiffs on an instalment payment basis, and as part of the deal the Dealeragreed to extend credit to Plaintiffs and to finance the sale of the vehicle itself and did alsosubsequently arrange for the Financier to extend credit to Plaintiffs.

16. As part of the deal, the Dealer made representations to Plaintiffs and Plaintiffs reliedupon the truthfulness of all said representations.17. As part of the deal, the Dealer represented to Plaintiffs, and Plaintiffs relied on said

representation, that the vehicle was a “one owner” which was “garage kept” and had “never beenin rain, sleet, hail or snow.” That representation was important to Plaintiffs in deciding to acquirethe vehicle, but not written into the sales documents, contrary to the requirements of the law.42

18. As part of the deal, and by operation of law, the Dealer also gave to Plaintiffs animplied warranty of merchantability and fitness for use, even though in other paperwork theDealer attempted to disclaim or otherwise limit the implied warranties that it had given toPlaintiffs, which was unfair and deceptive to Plaintiffs and in violation of the law.

43.

19. The motor vehicle involved in the transaction, i.e., the goods44, is a certain 2002 FordMustang, VIN [redacted]. A copy of the agreement is attached as Exhibit 1.

20. Defendant Dealer knew or should have known that the prior damage and repairs tothe 2002 Ford Mustang existed and that those facts would be important to Plaintiffs in makingtheir decision to acquire the vehicle, and that it should have been disclosed to Plaintiffs on orbefore the date of sale, but it did not do so.45

21. Defendant Dealer knew or should have known that the information and truth which itwithheld from Plaintiffs about the vehicle being owned by a car rental company and beinginvolved in an accident was something that the Plaintiffs would want to know and was materialto the transaction.

38Within the meaning of R.C. 1302.01(A)(6).39

See, Nations Credit v Pheanis (1995), 102 Ohio App.3d 71, 656 N.E.2d 998.40Within the meaning of R.C. 4517.01 (BB) and R.C. 1301.01(S).41Within the meaning of R.C. 1345.01(A).42O.A.C. 109:4-3-16(B)(22).43See, e.g., 15 USC 2308; Bush v American Motors Sales Corp. (1984, DC Colo), 575 F Supp 1581.44Within the meaning of R.C. 1310.01(A)(8).45It has been held that it is an unfair and unconscionable act or practice for a supplier to misrepresent the value of aused vehicle by failing to disclose the fact that the car had been seriously wrecked prior to consumer’s purchase,entitling the consumer to treble damages under R.C. 1345.09. See, Ford v Brewer (Ct. App., 10th District, FranklinCo., 12-9-86), 86-LW-3697, Case No. 86AP-626, OH AG PIF # 888.

8/3/2019 clp10_02


47

22. As a result of the above facts, inter alia, Plaintiffs requested that the Dealer cancelthe transaction and refund Plaintiffs’ money, but the Dealer refused and that was unfair toPlaintiffs.

46

23. As a result of the above facts, inter alia, before, during or after a consumertransaction between Plaintiffs and defendant Dealer, the Dealer committed one or more unfair

and deceptive acts in violation of R.C. 1345.02(A) and unconscionable acts in violation of R.C.1345.03(A).24. During the course of the consumer transaction between the Dealer and the Plaintiffs,

the Dealer provided conflicting notices of warranty rights and warranties to Plaintiffs and thatwas unfair to Plaintiffs.

25. Although federal law required the Dealer to disclose in writing to Plaintiffs whetherits warranty to Plaintiffs was a full warranty or a limited warranty47, the Dealer failed to discloseeither and, thus, by operation of law the dealer’s warranty to Plaintiffs is a full warranty underthe law.48

26. As a result of the above facts, inter alia, Defendant represented to Plaintiffs that thesubject of a consumer transaction had benefits that it did not have

49and representing that the

subject vehicle was a particular standard, quality, or grade that it was not

50

.27. As a result of the above facts, inter alia, before, during or after a consumertransaction between Plaintiffs and Defendant Dealer, Defendant Dealer committed anunconscionable act or practice for which the Financier is derivatively liable in connection with aconsumer transaction, in that it knowingly made, at the time the consumer transaction wasentered into with Plaintiffs, a misleading statement of opinion on which the Plaintiffs were likelyto rely to their detriment.51

28. As a result of the above facts, the defendant Dealer breached its warranties andrepresentations to Plaintiffs and that was unfair, deceptive and unconscionable to Plaintiffs52, anddefendant Financier is subject to all claims and defenses which Plaintiffs may assert against theDealer and is therefore derivatively and secondarily liable to Plaintiffs for the liability of theDealer.

29. One or more of the representations the Dealer made to Plaintiffs were both materialand false at the time they were given to Plaintiffs and the Dealer knew or should have knownthey were false at the time they were made, and that was unfair and deceptive andunconscionable to Plaintiffs.

30. Before, during and/or after the sale, the Dealer made representations to Plaintiffswhich created in the mind of Plaintiffs, who was a reasonable consumer, a false impression as toone or more material aspects of the deal53 and that was unfair to the Plaintiffs.

46Failure to honor a request for rescission has been held to violate the Consumer Act. See, e.g., Credit Acceptance

Corporation v. Banks (Ct. App. 8th

District, Cuyahoga Co., 12-16-99), 1999 Ohio App. LEXIS 6058, OH AG PIF#1840.4715 USC 2303.48 Hughes v Segal Enterprises, Inc. (1986, WD Ark), 627 F Supp 1231.

49In violation of R.C. 1345.02(B)(1).50In violation of R.C. 1345.02(B)(2).51In violation of R.C. 1345.03(B)(6).52As previously so held in the progeny of cases beginning with Brown v. Lyons (Ohio Com.Pl. 1974), 43 Ohio Misc.14, 332 N.E.2d 380, 72 O.O.2d 216.53In violation of Ohio Administrative Code 109:4-3-16(B)(3).

8/3/2019 clp10_02


48

31. Before, during and/or after the sale, the Dealer failed to integrate into a written salescontract all material statements, representations or promises, oral or written, made prior toobtaining the Plaintiffs’ signature on the written contract with the Dealer.

54

32. The Defendant Dealer had notices of the breaches of the agreement within areasonable time and a reasonable opportunity to cure its breach but failed to do so and that was

unfair to Plaintiffs.33. The Defendant Dealer refused to honor Plaintiffs’ rescission of the transaction andthat was unfair to Plaintiffs.

34. Plaintiffs suffered and shall continue to suffer actual, incidental and consequentialdamages as a direct and proximate result of the inability or other failure of Defendant Dealer’sfailure, refusal or other inability to cure the breach and for which the Financier is derivativelyliable.

SECOND CLAIM: MOTOR VEHICLE SALES RULE

35. The allegations of all other paragraphs and claims in this pleading are incorporated as

if fully rewritten herein.36. This second claim is for additional violations of the Consumer Act and the MotorVehicle Sales Rule55, by the Dealer and for which the Financier is derivatively liable.

37. Before, during, or after a consumer transaction between the parties, the DefendantDealer made one or more representations which could, and did, create in the mind of areasonable consumer a false impression as to the value of the vehicle.56

38. Before, during, or after a consumer transaction between the parties, the DefendantDealer made one or more representations which could, and did, create in the mind of areasonable consumer a false impression as to the prior use of the vehicle.57

39. The Purchase Agreement does not represent all of the terms of the entire agreementbetween the parties and failed to integrate all material statements, representations or promises,oral or written, made by the Dealer prior to obtaining the consumer’s signature on a writtencontract with the Defendant Dealer.58

40. Before, during or after a consumer transaction between the parties, the dealer failedto disclose, prior to obtaining the Plaintiffs’ signature of any document for purchasing thevehicle, the fact that the vehicle had been previously used as a rental vehicle.59

41. Before, during, or after a consumer transaction between the parties, the dealer failedto disclose, prior to obtaining the Plaintiffs’ signature of any document for purchasing thevehicle, the extent of previous damage to the vehicle.60

42. Before, during, or after a consumer transaction between the parties, the DefendantDealer delivered a motor vehicle to the Plaintiffs pursuant to a sale and represented that thevehicle included the remaining time and mileage portion of the manufacturer’s original new car 3year/36,000 mile warranty when, in truth and fact, it did not and that was unfair to Plaintiffs.61

54In violation of Ohio Administrative Code 109:4-3-16(B)(22).55Ohio Administrative Code 109:4-3-16(B).56In violation of O.A.C. 109:4-3-16(B)(3).57In violation of O.A.C. 109:4-3-16(B)(3).58In violation of O.A.C. 109:4-3-16(B)(22).59In violation of O.A.C. 109:4-3-16(B)(15).60In violation of O.A.C. 109:4-3-16(B)(14).61In violation of O.A.C. 109:4-3-16(B)(3).

8/3/2019 clp10_02


49

43. At the time it made such representation to the Plaintiffs, the Defendant Dealer knewor should have known at that time that the manufacturer’s original new car warranty would notcover the repairs for the damage to the vehicle which had occurred prior to the sale to Plaintiffsand withheld that information from Plaintiffs and that was unfair, deceptive and unconscionableto Plaintiffs.62

44. As a result of the above, inter alia, the Defendant Dealer violated the Motor VehicleSales Rule and the Consumer Act before, during or after a consumer transaction between thePlaintiffs and the Defendant Dealer and for which the Financier is derivatively liable.

THIRD CLAIM: FTC USED CAR WINDOW STICKER RULE


46. This third claim is for violations of the FTC Used Car Window Sticker Rule63 andadditional violations of the Consumer Act by the Dealer and for which the Financier isderivatively liable.

47. Before, during or after a consumer transaction between the parties, the Dealer failedto properly fill out and post on the subject vehicle, and later deliver a copy of to Plaintiffs, aBuyers Guide form that complied with applicable law and that was unfair to Plaintiffs.64

48. At all times relevant, the motor vehicle the Defendant Dealer sold Plaintiff was avehicle65 and a used vehicle66, said defendant was a Dealer67, and Plaintiffs were each aconsumer68.

49. Defendant Dealer sold or offered for sale a used vehicle in or affecting commerce, ascommerce is defined in the Federal Trade Commission Act.

50. Defendant Dealer entered into a consumer transaction with Plaintiffs and at that timesold or offered for sale a used vehicle in or affecting commerce, as commerce is defined in theFederal Trade Commission Act, and at that time failed to have properly posted on the subjectvehicle a “window sticker” form, a.k.a. a “Buyers Guide” form, that complied with the FTCUsed Car Window Sticker Rule.

51. Defendant Dealer entered into a consumer transaction with Plaintiffs and at that timesaid Dealer offered a used vehicle for sale to these consumer-Plaintiffs without preparing, fillingin as applicable and displaying on that vehicle a “Buyer’s Guide” in the form and mannerrequired by law for its display and use.

52. At the time the Defendant Dealer dealt with Plaintiffs, it knew or should have knownthat its forms did not comply with the applicable law.

53. As a result of the above, among other things, the Dealer has committed an unfairand/or deceptive act or practice in connection with a consumer transaction.69

62In violation of R.C. 1345.02(B)(10) and/or R.C. 1345.03(B)(6).6316 C.F.R. 455.1 et seq.64

Cummins v Dave Fillmore Car Co., Inc. (Ct. App., 10th District, Franklin Co., 11-27-87), 110 Ohio App.3d 504,674 N.E.2d 779, OH AG PIF# 641.65Within the meaning of 16 C.F.R. 455.1(c)(1).66Within the meaning of 16 C.F.R. 455.1(C)(2).67Within the meaning of 16 C.F.R. 455.1(c)(3).68Within the meaning of 16 C.F.R. 455.1(c)(4).69In violation of R.C. 1345.02(A).

8/3/2019 clp10_02


50

54. As a result of the above, inter alia, the Defendant Dealer committed an unfair ordeceptive act or practice in violation of the FTC’s Used Car Window Sticker Rule and theConsumer Act and for which the Financier is derivatively liable.

55. As a result of the above, inter alia, the Defendant Dealer committed one or moreunfair or deceptive acts or practices in violation of the Consumer Act, before, during or after one

or more consumer transactions between Plaintiff and one or more of the Defendants.

FOURTH CLAIM: FEDERAL PRIVACY LAWS


57. This third claim is for violations of the federal Privacy Laws and Regulations70 andadditional violations of the Consumer Act by the Dealer and for which the Financier isderivatively liable.

58. At all times relevant, Plaintiffs were each a customer and a consumer in relation tothe Dealer, and the Dealer was a financial institution, and the parties were engaged in a customer

relationship, all in relation to the transaction between them and within the meaning of 15 USC6801 et seq.59. The Financier is not an affiliate of the Dealer and the Dealer is not an affiliate of the

Financier, and each was a nonaffiliated third party with respect to the other, all within themeaning of 15 USC 6801 et seq.

60. Before, during or after a consumer transaction between the Dealer and the Plaintiffs,the Dealer disclosed customer information about the Plaintiffs, including nonpublic personalinformation about the Plaintiffs, to the Financier.

61. Plaintiffs believe that the Dealer has done exactly the same thing in hundreds of other consumer transactions in the last two years with other similarly situated customers andconsumers whose Dealer retail instalment sales contract was assigned to the named Financierherein and other financial institutions who were nonaffiliated third parties.

62. Before, during and after a consumer transaction between the Dealer and thePlaintiffs, the Dealer provided Plaintiffs with a “Privacy Notice” in an attempt to comply withapplicable federal Privacy Laws and Regulations, but the form fails to comply with therequirements of the law in one or more manners.

63. Plaintiffs believe that the Dealer has done exactly the same thing in hundreds of other consumer transactions in the last two years with other similarly situated customers andconsumers.

64. Defendant Dealer used the identical “Privacy Notice” form in numerous otherconsumer transactions for the sale of motor vehicles and thereby violated the applicable laws innumerous other transactions with other consumers, many of whom are unaware of the violation.

65. At the time the Defendant Dealer dealt with Plaintiff, it knew or should have knownthat its form did not comply with the applicable law.

66. At the time the Defendant Dealer dealt with other consumers in the sale of motorvehicles, it knew or should have known that its form did not comply with the applicable law.

67. The Defendant Dealer’s violation of this law with respect to this consumer-Plaintiffsis, in one or more manners, identical with the Defendant Dealer’s violation of this law withrespect to other consumer purchasers of motor vehicles.

7015 USC 6801 et seq. and 16 CFR 313 et seq.

8/3/2019 clp10_02


51

68. Defendant Dealer violated this law in at least 100 consumer transactions involvingmotor vehicles and more likely several thousand consumer transactions during the last two years.

69. Plaintiff, and those persons who are similarly situated with regard to the violation of this law, are believed to number in excess of 1,000 persons.

70. Those persons who are similarly situated as Plaintiff, with regard to the violation of

this law, each received a form identical to those given to Plaintiffs and which violate the law asstated herein.71. There are common questions of law and fact in this action that relate to and affect the

rights of Plaintiff and those persons who are similarly situated are Plaintiffs and those personssimilarly situated are entitled to relief.

72. The claim of the Plaintiffs in this regard, and in this claim, is typical of the claim of each person similar situated to the Plaintiffs.

73. The claim of the Plaintiffs in this regard, and in this claim, just as the claim of eachsimilarly situated consumer would be, may be dependent in whole or in part on a showing of theacts, omissions, and admissions of the Defendant Dealer giving rise to the rights of the Plaintiffsto the reliefs sought herein.

74. There is no conflict between Plaintiffs and other similarly situated persons withrespect to this cause of action, or with respect to the respective claim for relief herein set forth.75. The identity of each individual who is similarly situated to the Plaintiffs can be

ascertained from the books and records maintained by the Defendant Dealer.76. As a result of the above, among other things, the Dealer has committed an unfair

and/or deceptive act or practice in connection with a consumer transaction.71 77. Before, during or after a consumer transaction between the Dealer and the Plaintiffs,

the Dealer failed to comply in one or more manners with its statutory and other obligations andduties under 15 USC 6801 et seq and one or more of its enabling provisions of the Code of Federal Regulations, and that was unfair and deceptive to Plaintiffs.

72

FIFTH CLAIM: BREACH OF CONTRACT


79. This fourth claim is for breach of contract and/or warranties and additional violationsof the Consumer Act by each and every defendant, jointly and/or severally.

80. As a result of the above, inter alia, each and every defendant breached its contractand warranties with Plaintiffs, and that was unfair and/or deceptive to Plaintiffs.73

SIXTH CLAIM: MAGNUSON MOSS ACT


71In violation of R.C. 1345.02(A).72By application of R.C. 1345.02(A) and R.C. 1345.02(C).73As previously so held in the progeny of cases beginning with Brown v. Lyons (Ohio Com.Pl. 1974), 43 Ohio Misc.14, 332 N.E.2d 380, 72 O.O.2d 216.

8/3/2019 clp10_02


52

82. This fifth claim is for violation of the Magnuson Moss Warranty Act74 and foradditional violations of the Consumer Act by the Dealer and for which the Financier isderivatively liable.

83. Before, during or after a consumer transaction between the parties, the Dealer failedto comply with the terms of its warranty in one or more manners, and that was unfair to

Plaintiffs.84. Before, during or after a consumer transaction between the parties, the Dealer failedto comply with its statutory and other obligations under the Magnuson Moss Act, and that wasunfair to Plaintiffs.

85. As a result of the above, inter alia, the Dealer violated the Magnuson Moss Act andthat was unfair and/or deceptive to Plaintiffs.75

SEVENTH CLAIM: FRAUD


87. This sixth claim is for fraud and deceit by the Defendant Dealer for which theFinancier is derivatively liable.88. During the course of the transaction between the Plaintiffs and the Defendant Dealer,

several false representations of fact were made by the Defendant Dealer with knowledge of itsfalsity or with utter disregard and recklessness about its falsity that knowledge may be concludedor found, as stated above in more detail.

89. During the course of the subject transaction between Plaintiffs and the DefendantDealer, a knowing concealment of fact which was done by said Defendant Dealer at a time when,and under circumstances where, there was a duty to disclose, to wit: the truth about the conditionof the vehicle and its prior damage and history as a rental company vehicle and the effect thatwould have on the value of the vehicle and the other misrepresentations stated and referred toabove.

90. The Defendant Dealer’s acts and omissions of representation and concealment werematerial to the transaction.

91. The Defendant Dealer’s acts and omissions of representation and concealment weremade with the intent of misleading Plaintiffs into relying upon it.

92. The Defendant Dealer’s acts and omissions of representation and concealment weremade with the fraudulent intent of inducing Plaintiffs to enter into a written contract to purchasethe motor vehicle, which it did.

93. The Plaintiffs were justified in relying on the representation and the lack of anyconcealment by the Defendant Dealer and did, in fact, so rely.

94. As a result of the above, the Dealer committed one or more acts of fraud uponPlaintiffs and that was unfair to Plaintiffs.

95. As a direct and proximate result of the above, Plaintiffs were injured and the injurywas caused by Plaintiffs’ reliance on the representation and concealment.

7415 U.S.C. 2301 et seq. 75A violation of the Magnuson Moss Act has been held to be a per se violation of the Consumer Act in the progenyof cases beginning with Brown vs. Spears (1979, Franklin Municipal Court, Ohio), 1979 WL 52451, OH AG PIF#403.

8/3/2019 clp10_02


53

WHEREFORE, judgment is demanded against each Defendant, jointly and severally, asdeemed proper and lawful by the Court, as follows:

PRAYER FOR RELIEF

1. On the first claim, actual damages or $200.00 statutory damages or three times actualdamages, whichever is greater, and other damages, remedies, and relief as deemed proper andlawful by the Court, for each and every violation that may be proven at trial;

2. On the second claim, actual damages or $200.00 statutory damages or three timesactual damages, whichever is greater, and other damages, remedies, and relief as deemed properand lawful by the Court, for each and every violation that may be proven at trial;

3. On the third claim, actual damages or $200.00 statutory damages or three times actualdamages, whichever is greater, and other damages, remedies, and relief as deemed proper andlawful by the Court, for each and every violation that may be proven at trial;

4. On the fourth claim, actual damages or $200.00 statutory damages or three times

actual damages, whichever is greater, and other damages, remedies, and relief as deemed properand lawful by the Court, for each and every violation that may be proven at trial;5. On the fifth claim, actual damages or $200.00 statutory damages or three times actual

damages, whichever is greater, and other damages, remedies, and relief as deemed proper andlawful by the Court, for each and every violation that may be proven at trial;

6. On the sixth claim, actual damages or $200.00 statutory damages or three times actualdamages, whichever is greater, and other damages, remedies, and relief as deemed proper andlawful by the Court, for each and every violation that may be proven at trial;

7. On the seventh claim, actual damages in an amount within the jurisdiction of thisCourt and punitive damages in an amount in excess of $25,000 and as deemed fair and equitableat the trial thereof, and such other remedies and relief as deemed proper and lawful.

Plus on every applicable claim, expenses of suit and litigation, interest, reasonableattorney fees, and for judgment against one or more Defendants in an amount to be determinedas legal and proper by the Court together with any and all other legal and equitable relief deemednecessary and just, plus all costs, and any and all of this legal and equitable relief deemednecessary and just.

Plaintiffs Demand Trial by Jury on All Issues and All Claims.

____________________________[Attorney for Plaintiffs]

8/3/2019 clp10_02


54

REQUEST FOR SERVICE

TO THE CLERK:

Please serve a copy of the foregoing upon the defendants at the address listed below, by certified

mail, return receipt requested:

[Attorneys for Defendants]

____________________________[Attorney for Plaintiff]

8/3/2019 clp10_02


55

2.3 Class Complaint for Padding Repair Bills

IN BUTLER COUNTY COMMON PLEAS COURT, OHIO

[CONSUMER],Plaintiff,

v.

WEST OF SWEDEN, INC. DBA JUST SAABC/O MICHAEL G. KOHN, STATUTORY AGENT6323 MADISON ROADCINCINNATI, OH 45227,

Defendant.

Case No.

CLASS ACTION COMPLAINT AND JURY DEMAND

INTRODUCTORY FACTS

1. This case is about a Saab with a bad convertible top that could never be fixed underwarranty — but when the warranty ran out the Dealer said they could fix it now. Problem was,they didn’t tell Plaintiff that they would break it in order to “fix” it. The part they “fixed” appearsto be fixed now, but the part they broke is still broke, and the Dealer wants the Plaintiff to paythem $2,200.00 to fix the part they admit they broke. While the broken part was not a “straw”, it

was the “straw that broke the camel’s back”.2. To add proverbial insult to injury, the Dealer has also been using a computer programin its Service Department that has bilked thousands of customers out of an average of about$185,000 per year in padded billing practices.


4. At all times relevant, Plaintiff was a consumer76.5. At all times relevant, West of Sweden, Inc. dba Just Saab and dba Just Saab of

Cincinnati77 was and is a corporation and a supplier78 and merchant79, engaged in the business of selling and servicing motor vehicles within the jurisdiction of this Court, and in the business of arranging for the financing of agreements relating to the sale and lease of motor vehicles, and

rendering advice and counsel to consumers with regard to and in relation to same, all within the jurisdiction of this Court.

76Within the meaning of Ohio’s Unfair and Deceptive Acts and Practices statute, the Ohio Consumer Sales PracticesAct, R.C. 1345.01(D).77Hereafter referred to as the Dealer.78Within the meaning of R.C. 1345.01(C).79Within the meaning of R.C. 1302.01(A)(5).

8/3/2019 clp10_02


56

6. At all times relevant, the Dealer engaged in the business of selling and servicing newmotor vehicles within the jurisdiction of this Court.

7. On or about February 18, 1997 the parties entered into a consumer transaction80

, inthat Plaintiff agreed to purchase from the Dealer, the Dealer agreed to sell to Plaintiff, and as partof the deal the Manufacturer agreed to warrant the vehicle to be free from malfunctions, the

vehicle being a certain 1997 Saab 900 S Convertible motor vehicle.8. A copy of the sales contract is attached as Exhibit 1.9. The goods81 which were the subject of the agreement included a motor vehicle being a

certain 1997 Saab 900 S Convertible.

CLASS CLAIM: CONSUMER ACT


11. This claim is for additional violations of the Consumer Act by the Dealer.12. Since at least 1997, the Dealer has used one or more computer programs to generate

service department invoices and bills for consumers who obtained repair services from it,unfairly and deceptively padding those bills with ambiguous, false, fabricated and fictitiouscharges and collecting monies from consumers for charges that have little or no actual relation tothe services being rendered, and which earned the Dealer about $185,000.00 per year in extraand undeserved profit at the unwitting expense of the Dealer’s customers.

13. Those computer programs were designed, in whole or in part, by the Dealer.14. The Dealer reviewed those computer programs and approved of their operation

before implementing them in its routine practices in its service department.15. As part of the computer programs it designed, approved, and implemented, the

Dealer’s computer program automatically imposes one or more additional charges on the invoiceof every paying customer for items the computer program designates as “Misc” or “EPA/ShopSupplies” or “Cinergy Surcharge”.

16. The additional charges are automatically calculated from a formula which wasdesigned and/or approved and/or implemented by the Dealer, and is designed to generatebetween about 7 and 13 percent additional income for each dollar charged the customer in theDealer’s Service Department, plus additional sales tax on the padded amounts.

17. The Dealer has admitted that it routinely does not notify customers in advance of thefull amount it is going to charge for these additional and unforseen “surcharges”.

18. The Dealer has stated that the charges for what it calls “EPA/Shop Supplies” go intoan “EPA Fund” which it uses to pay “EPA charges” with, but provides no accounting of thatmoney to anyone but itself. Upon information and belief, Plaintiff states that the EPA makes nocharges or assessments against the Dealer which justify the 7% to 9% of additional charges beingquietly and surreptitiously placed on consumer bills.

19. When asked about the “Cinergy Surcharge” the Dealer admitted that customers werenot told about that charge in advance at all, and that no one in the Service Department knew howit was calculated or where it came from, or that it was going to even start to be routinely chargedon consumer bills — someone “above” the Department made that decision and it “justhappened.”

80Within the meaning of R.C. 1345.01(A).81Within the meaning of R.C. 1310.01(A)(8).

8/3/2019 clp10_02


57

20. The Dealer has admitted that it charges tax on the padded amounts that it is routinelyadding into the consumer bills without consumers knowing it in advance, so in addition to theincreased and unjustified charges, the resulting total also causes an increase in the amount of taxpaid in each transaction. Thus, consumers are paying three different increases in what wouldotherwise be their normal bill.

21. As an example, on June 29, 2001 the Dealer generated invoice number 73871 forPlaintiff, a copy of which is attached as Exhibit 2. That invoice charged Plaintiff about $18.00more than was rightfully owed for the services rendered.

22. As a second example, on October 27, 2000 the Dealer generated invoice number65540 for Plaintiff, a copy of which is attached as Exhibit 3. That invoice charged Plaintiff about $43.00 more than was rightfully owed for the services rendered.

23. As another example, on October 13, 1999 the Dealer generated invoice number52938 for Plaintiff, a copy of which is attached as Exhibit 4. That invoice charged Plaintiff about $5.00 more than was rightfully owed for the services rendered.

24. Using just Plaintiff’s own known numbers, the Dealer charged Plaintiff an average of about $17.60 more on each repair than was rightfully owed for the average services being

rendered.25. Between October 13, 1999 and June 29, 2001, the Dealer generated about 21,000invoices for customers using its Service Department.

26. Based on these averages, that means the Dealer wrongfully charged and receivedabout $369,000.00 from its customers in the last 23 months. That is over $16,000 per month, or$4,000 per week in extra unearned profit.

27. As a result of the above, among other things, the Dealer has committed an unfairand/or deceptive act or practice in connection with a consumer transaction.82

28. As a result of the above, among other things, the Dealer falsely represented that oneor more portions of a consumer transaction were supplied in accordance with a previousrepresentation when it had not been.83

29. As a result of the above, among other things, the Dealer falsely represented that oneor more obligations existed by a consumer when the representation was false.84

30. As a result of the above, among other things, the Dealer charged for a repair orservice which had not been authorized by the consumer.

85

31. As a result of the above, among other things, the Dealer failed to disclose upon thefirst contact with the consumer that a charge not directly related to the actual performance of therepair or service would be imposed by the Dealer.86

32. As a result of the above, among other things, the Dealer failed to disclose upon thefirst contact with a consumer the basis upon which a charge would be imposed.87

33. As a result of the above, among other things, the Dealer falsely represented thatservices were necessary when such was not the fact.88

34. As a result of the above, among other things, the Dealer falsely represented thatservices have been performed when such was not the fact.89

82In violation of R.C. 1345.02(A).83In violation of R.C. 1345.02(B)(5).84In violation of R.C. 1345.02(B)(10).85In violation of Ohio Administrative Code 109:4-3-13(C)(5).86In violation of R.C. 1345.02(A).87In violation of R.C. 1345.02(A).88In violation of O.A.C. 109:4-3-13(C)(8).

8/3/2019 clp10_02


58

35. As a result of the above, among other things, the Dealer materially understated ormistated the estimated cost of the repairs or services.90

36. As a result of the above, among other things, the Dealer failed to provide theconsumer with an honest and truthful itemized list of services rendered, including a list of partsor materials and a statement of whether they are used, remanufactured or rebuilt, if not new, and

the cost thereof to the consumer, and the amount charged for labor.

91

CLASS ALLEGATIONS

37. Whenever in this complaint reference is made to any act, deed or transaction of anycorporation, such allegation shall be deemed to mean that said corporation engaged in such act,deed or transaction by or through its officers, directors, agents, employees or representativeswhile they were engaged in the management, direction, control or transaction of its business oraffairs.

38. Plaintiff is bringing this action on behalf of herself and other members of a class of persons, believed to number in excess of 1,000 persons consisting of those persons who are

similarly situated, such as will be further defined by in Plaintiff’s motion to certify the class, tobe filed later.39. This is a class action under the provisions of Rule 23(A), Rule 23(B)(1), Rule

23(B)(2), and Rule 23(B)(3), for damages, injunction, and relief consistent and subordinatethereto, including costs, expenses of investigation and litigation, and attorney fees.

40. The class so represented by Plaintiff in this action, and of which Plaintiff is amember, consists of: every consumer who paid to Dealer any money which was charged and/orbilled as a cinergy surcharge or EPA/shop supply charge or any increase in tax paid because of one of those charges during the last two years.

41. There are common questions of law and fact in the action that relate to and affect therights of each member of the class and the relief sought is common to the entire class.

42. The claims of the Plaintiff, who is a representative of the class herein, are typical of the claims of the class, in that the claims of all members of the class, including Plaintiff’s,depend on a showing of the acts, omissions, and admissions of the Defendant giving rise to therights of the Plaintiff to the reliefs sought herein.

43. There is no conflict between Plaintiff and other members of the class with respect tothis action, or with respect to the claims for relief herein set forth.

44. The named Plaintiff is the representative party for the class, and able to, and will,fairly and adequately protect the interests of the class.

45. Further, this action is properly maintained as a class action inasmuch as the questionsof law and fact common to the class members predominate over any questions affecting onlyindividual members, and a class action is superior to other methods available for the fair andefficient adjudication of the controversy.

46. The identity of each individual member of the class can be ascertained from thebooks and records maintained by the Defendant.

89In violation of O.A.C. 109:4-3-13(C)(9).90In violation of O.A.C. 109:4-3-13(C)(11).91In violation of O.A.C. 109:4-3-13(C)(12).

8/3/2019 clp10_02


59

WHEREFORE, judgment is demanded against defendant as deemed proper and lawful by theCourt, alternatively as follows:

PRAYER FOR RELIEF

1. On the class claim, an order certifying the class which Plaintiff will represent, an orderprohibiting further violations of the law, $200 statutory damages for each class member,disgorgement of all illegal profits and gains by the Dealer, reimbursement to all class membersof all illegal charges collected by the Dealer, and attorney fees and costs of litigation and any

and all other legal and equitable relief to which Plaintiff and the class may be entitled.

Plus on each and every claim, expenses of suit and litigation, interest from the date thecontract was consummated, together with any and all other legal and equitable relief deemednecessary and just, plus all costs, and any and all other legal and equitable relief deemednecessary and just.

Plaintiff demands trial by jury on all issues and all claims.

______________________[Attorney for Plaintiff]

8/3/2019 clp10_02


60

2.4 Class Complaint for Altering FTC Used Car Sticker

IN MONTGOMERY COUNTY COMMON PLEAS COURT, OHIO

[CONSUMER],Plaintiff,

v.

ODYSSEY CORPORATIONDBA TOY STORE4905 SPRINGBORO PIKEDAYTON, OH 45342

and

PREFERRED WARRANTIES, INC.117 RT. 183 P.O. BOX 278ORWIGSBURG, PA 17961,

Defendants.

Case No.

CLASS ACTION COMPLAINT & JURY DEMAND (ALLEGING VIOLATIONS OF THE

OHIO CONSUMER SALES PRACTICES ACT & FEDERAL LAW)

1. IDENTIFICATION OF THE PARTIES

1. This case involves large-scale violations of the Ohio Consumer Sales Practices Act,Ohio Revised Code 1345.01 et seq., by Defendant ODYSSEY CORPORATION dba TOYSTORE [hereinafter “defendant car dealer”] and Defendant PREFERRED WARRANTIES, INC.[hereinafter “defendant service company”].

2. Named Plaintiff, [Consumer], [hereinafter “plaintiff”] and the class of persons sheseeks to represent, are each “consumers” and each a purchaser of a used motor vehicle acquiredfrom defendant car dealer during the previous four years in connection with “consumertransactions” as defined by the Consumer Sales Practices Act, R.C. 1345.01(A), and in each case

engaged in a consumer transaction with subsequent to an unfair or deceptive act committed bydefendant service company.3. Plaintiffs believe and have reason to believe that the defendant car dealer and

defendant service company each jointly and severally violated the laws cited below in the exactsame manner with regard to other consumers in other consumer transactions involving the sale of used motor vehicles inasmuch as the violation consists of said defendants’ failure to includefederally mandated language and its alteration of federally mandated language in its forms usedin consumer transactions involving the sale and marketing of used motor vehicles in Ohio.

8/3/2019 clp10_02


61

4. Defendant service company does business in Ohio and has its place of business inPennsylvania and is a supplier within the meaning of the Consumer Sales Practices Act.

5. Defendant car dealer does business and has its place of business in MontgomeryCounty, Ohio and is a supplier within the meaning of the Consumer Sales Practices Act and amerchant within the meaning of the Ohio Commercial Code.

6. Defendant car dealer solicited, affected, effected, or otherwise engaged in a“consumer transaction” with plaintiff and/or the members of her class, by its actions andomissions stated elsewhere in this complaint.

7. Defendant service company solicited, affected, effected, or otherwise engaged in a“consumer transaction” with plaintiff and/or the members of her class and also solicited,affected, effected, or otherwise engaged in similar consumer transactions between other cardealers who were suppliers in Ohio and Ohio consumers, by its actions and omissions statedelsewhere in this complaint.

8. The defendants were, jointly and severally, at all times relevant to this case, engagedin the business of effecting or soliciting one or more consumer transactions in Ohio with plaintiff and other Ohio consumers between the present date and four years prior hereto, within the

meaning of O.R.C. 1345.01(A).

2. FIRST CLAIM: CONSUMER ACT


10. This claim is for violation of the Ohio Consumer Sales Practices Act by defendants.11. Whenever in this complaint reference is made to any act, deed or transaction of any

corporation, such allegation shall be deemed to mean that said corporation engaged in such act,deed or transaction by or through its officers, directors, agents, employees or representativeswhile they were engaged in the management, direction, control or transaction of its business oraffairs.

12. Defendant car dealer used a “Buyers Guide” window sticker form that was providedby defendant service company and which form violated the FTC Car Window Sticker Rule byfailure to include mandatory language and by alteration of the mandatory language required byfederal law.

13. The defendant car dealer committed one or more unfair and/or deceptive and/orunconscionable acts or practices in violation of the Ohio Consumer Sales Practices Act before,during and/or after one or more consumer transactions occurred in Ohio by, inter alia, itsdistribution, marketing, promotion, display and/or use of the “Buyers Guide” form in violation of the FTC Used Car Window Sticker Rule.

14. By its distribution of the violative form, intending and with knowledge that suchdistribution would ultimately take place before, during and/or after one or more consumertransactions in Ohio, the defendant service company committed one or more unfair and/ordeceptive and/or unconscionable acts or practices in violation of the Ohio Consumer SalesPractices Act before, during and/or after one or more consumer transactions occurred betweenOhio consumers and suppliers.

3. CLASS ACTION ALLEGATIONS

8/3/2019 clp10_02


62

15. Plaintiff is bringing this action on behalf of herself and other members of the class of persons, believed to number in excess of 500 persons in each subclass, and consisting of thosepersons who:

The ODYSSEY CORPORATION dba TOY STORE Subclass:

a. entered into a sales transaction with defendant car dealer,b. involving the sale of a used motor vehicle,c. during the two years prior to the filing hereof,d. where the window sticker form used by the car dealer was that form identical to

the form attached hereto as Exhibit 1;

The Service Company Subclass:

a. entered into a consumer transaction with an Ohio car dealerb. involving the sale of a used motor vehiclec. during the two years prior to the filing hereof,d. where the window sticker form used by the car dealer was that form identical to

the form attached hereto as Exhibit 1.

16. All provisions of this complaint which are framed as a class action are set forth andasserted under the provisions of Rule 23(A), Rule 23(B)(2), and Rule 23(B)(3), for damages,injunction, and relief consistent and subordinate thereto including costs, expenses of investigation and litigation, and attorney fees.

17. The exact number of each subclass, as above identified and described is unknown,but is estimated to be in excess of 500 persons; the class is so numerous that joinder of individualmembers is impracticable.

18. There are common questions of law and fact in the action that relate to and affect therights of each member of the class and the relief sought is common to the entire class, mainly,inter alia:

a. whether the subject “Buyers Guide” window sticker violates the FTC Used CarWindow Sticker Rule;

b. whether the violation of the FTC Used Car Window Sticker Rule constitutes apattern and/or practice of unfair or deceptive acts prohibited by the ConsumerSales Practices Act;

c. whether the violation of the FTC Used Car Window Sticker Rule is a per seunfair, deceptive and/or unconscionable act or practice in violation of the OhioConsumer Sales Practices Act.

19. The claims of plaintiff are typical of the claims of the class, in that the claims of allmembers of the class.

20. There is no known conflict between plaintiff and other members of the class.21. The named plaintiff is able to, and will, fairly and adequately protect the interests of

the class.22. Counsel for plaintiff is experienced and capable in litigation in the field of consumer

Rights and Protection and has successfully represented claimants in other litigation of such anature, against numerous car dealers and other suppliers, in class actions and individual cases.

8/3/2019 clp10_02


63

23. This action is properly maintained as a class action in that the prosecution of separateactions by individual members of the class would create a risk of adjudications with respect toindividual members of the class which would as a practical matter be dispositive of the interestof the other members not parties to the adjudications, or would substantially impair or impedetheir ability to protect their interests.

24. This action is properly maintained as a class action in that the prosecution of separateactions by individual members of the class would create a risk of adjudications with respect toindividual members of the class which would establish incompatible standards of conduct for thedefendants, who are expected to oppose the class.

25. This action is also properly maintained as a class action inasmuch as the defendantsherein, who are expected to oppose the class have acted on grounds which are applicable to theclass, and by reason of such conduct have made appropriate final injunctive relief orcorresponding other relief with respect to the entire class, as sought in this action.

26. Furthermore, this action is properly maintained as a class action inasmuch as thequestions of law and fact common to the class members predominate over any questionsaffecting only individual members, and a class action is superior to other methods available for

the fair and efficient adjudication of the controversy.27. The relief sought by all members of the class will be effective and appropriate for theentire class; all members of the class have a right to minimum statutory damages of $200.00 eachor other relief which may be readily cmputed in each case or otherwise determined readily.

28. The identity of each individual member of each of the subclasses can be ascertainedfrom the books and records maintained by defendants

29. Appearance of the named plaintiff will fairly insure the adequate representation of allmembers of the class and protect their interests.

30. Because many of the persons with whom the defendants have dealt are not aware of their rights against the defendants, or are not in a financial position to assert such rights readily,and because relegation of their claims to individual actions would result in an unreasonablemultiplicity of suits and a corresponding burden on this and other courts, a class action is farsuperior to all other methods for fairly and efficiently adjudicating this controversy.

WHEREFORE, judgment is demanded against each defendant as deemed proper and lawful bythe Court, as set forth above and alternatively as follows:

CLASS ACTION CLAIMS’ PRAYER FOR RELIEF

1. Plaintiff seeks a determination that this claims plead with class action allegations areappropriate for class action relief and deemed as such by an Order from this Court;

2. Relief deemed proper and legal in accord with the law, for each and every violationproven at trial;

3. Minimum statutory damages of $200.00 for each member of the class;4. An injunction prohibiting any defendant from any future violations of the laws set

forth above;5. Expenses of suit and litigation;6. Reasonable attorney fees and Costs;7. Any other legal and equitable relief deemed necessary and just.

8/3/2019 clp10_02


Plaintiff demands trial by Jury on all issues and claims.

_____________________________[Attorney for Plaintiff]

clp10_02

Documents