Gant v. Connor Chevrolet, Inc., et al
NOTICE OF PENDENCY OF CLASS ACTION
To: All persons who satisfy the following criteria: (a) They entered into an automobile transaction with O'Connor Chevrolet, Inc. ("O'Connor"); (b) In connection with their automobile transaction, they purchased a service contract or extended warranty; (c) Their transaction was financed by a retail installment contract; (d) Their transaction was documented as a consumer transaction (i.e., TILA disclosures were given); (e) The retail installment contract states that an amount was paid to a third party on account of an extended warranty or service contract that is other than the amount actually collected by the third party; and (f) The retail installment contract was assigned to Evergreen Finance Company ("Evergreen"). The class period begins on or after October 16, 1995 and continues until the date that such or similar alleged improper disclosures were discontinued.
PLEASE READ THIS NOTICE CAREFULLY.
THIS IS NOT AN ATTEMPT TO COLLECT MONEY FROM YOU. THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. YOU MAY BENEFIT FROM READING THIS NOTICE.
Pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure, you are hereby notified that a class action lawsuit is pending in this Court. You may be a member of the class.
This lawsuit contends that O'Connor and Evergreen violated the Truth in Lending Act ("TILA"), the Illinois Consumer Fraud Act ("CFA") in connection with consumer credit transactions by providing improper disclosures in the manner in which it disclosed the price of extended warranties and service contracts on retail installment contracts.
DEFINITION OF THE CLASS
On September 3, 1999, the Court determined that this case should go forward as a class action on behalf of all persons who satisfy the following criteria:
a. They entered into a automobile transaction with O'Connor; b. In connection with their automobile transaction, they purchased a service contract or extended warranty; c. Their transaction was financed by a retail installment contract; d. Their transaction was documented as a consumer transaction (i.e., TILA disclosures were given); e. The retail installment contract states that an amount was paid to a third party on account of an extended warranty or service contract that is other than the amount actually collected by the third party; and f. The retail installment contract was assigned to Evergreen.
The class period begins on or after October 16, 1995 and continues until the date that such or similar alleged improper disclosures were discontinued.
The following entries from the "Itemization of Amount Financed" on plaintiff's retail installment contract illustrate the representations with which this case is concerned. The case is concerned only with the disclosure of the price of extended warranty or service contract (italicized below for emphasis).
ITEMIZATION OF AMOUNT FINANCED
1. Cash Price $ 4,776.08
2. Down Payment Trade-In $ N/A Less Amount Owing $ N/A Net Equity $ N/A Cash Down Payment $ 500.00
3. Less Total Down Payment $ 500.00
4. Unpaid Balance of Cash Price $ 4,276.08
5. Documentary Fee $ 46.05
6. Other Charges $
Official Fees -- Title charges $ 61.00 Taxes (not included in cash price) $ 70.77 Physical Damage Insurance for term of ____ months. $ 400.00 Comprehensive $ N/A GAP INS $ 225.00 $ N/A Deductible $ N/A Towing and Labor $ N/A Combined Additional Coverage EXT WARR $ 680.00 Other $ N/A Credit Life Insurance $ N/A Credit Disability (Acc. & Health Ins.) $ Total Amount to Be Paid to Others On Your Behalf $ 1,436.77
7. Unpaid Balance-Amount Financed $ 5,758.90
The specific itemized disclosures may be different on your contract, including the numbers and/or name of the warranty company, if any.
To be a member of the class, you must meet all of the criteria listed above. If you do not meet the class definition, this notice does not apply to you. If you are uncertain whether you are a class member, contact counsel for the class or your own attorney. Class members may be entitled to recover damages under the Illinois Consumer Fraud Act. Additionally, class members may also be eligible to recover damages under the TILA for transactions on or after October 16, 1997 until the date that such or similar alleged improper disclosures were discontinued.
WHAT THIS LAWSUIT IS ABOUT
On or about October 17, 1997, Ms. Gant bought a car from O'Connor. She also bought an extended warranty or service contract. To pay for the car and warranty, she signed a retail installment contract.
In the retail installment contract, O'Connor made certain disclosures to Ms. Gant. In the "Itemization of Amount Financed," O'Connor stated that $680.00 was paid to a third party insurer for the extended warranty.
Ms. Gant contends that, in fact, O'Connor did not pay $680.00 to a third party insurer for the extended warranty. Ms. Gant claims that: a) O'Connor paid only a portion of the $680.00 to a third party; and b) O'Connor retained the balance of the $680.00 for itself. Ms. Gant contends that O'Connor's action in not properly disclosing this fact is a violation of the TILA, the CFA and the Illinois Sales Finance Agency Act (the "ISFAA").
Ms. Gant further contends that Evergreen, by accepting assignment of the contracts containing such misrepresentations, is liable for the misrepresentations of O'Connor. Ms. Gant also alleges that Evergreen actually took part and assisted in making the alleged misrepresentations.
Ms. Gant filed this class action against O'Connor and Evergreen. Under the CFA, Ms. Gant seeks, on behalf of herself and the class: a) compensatory damages, b) punitive damages, c) an injunction halting the practice complained of, d) attorney's fees, litigation expenses and costs, and e) for such other or further relief ans the Court deems appropriate.
Under the ISFAA, Ms. Gant seeks, on behalf of herself and the class: a) compensatory and statutory damages, b) attorney fees, litigation expenses and costs, and c) such other and further relief as the Court deems appropriate.
Under the TILA, if a plaintiff prevails on its claims, the Court may award attorney's fees, actual damages and statutory damages. Statutory damages may be awarded on a class basis in amount not more than the lesser of $500,000 or one percent of the creditor's net worth if plaintiff is successful in proving that warranties were sold for more in credit transactions as compared to cash transactions. The TILA claim applies only to persons whose purchases were made on or after October 16, 1997 until the date that such or similar alleged improper disclosures were discontinued.
If you choose to pursue an individual action, you may pursue the same remedies available under the CFA and ISFAA on an individual basis. If you prevail on your individual claims under the TILA, you may be able to recover your actual damages and attorney's fees. Furthermore, should you be successful in proving that warranties were sold for more in credit transactions as compared to cash transactions, you may be able to obtain a statutory recovery under the TILA of twice your finance charge, in an amount not to exceed $1,000.
O'Connor and Evergreen deny that they violated the TILA, the Illinois Consumer Fraud Act or the Illinois Sales Finance Agency Act or did anything wrong, and claim they are not liable to Ms. Gant or the class members.
This notice is not an admission by O'Connor or Evergreen or finding by the Court that the claims asserted by Ms. Gant in this case are valid, or that there has been any wrongdoing or violation of law. The Court has not made any ruling as to the merits of the case.
The attorneys for Ms. Gant and the class are:
Daniel A. Edelman Cathleen M. Combs James O. Latturner Susan E. Moore EDELMAN, COMBS & LATTURNER 120 South LaSalle St., 18th Floor Chicago, IL 60603 (312) 917-4504 (312) 419-0379 (FAX)
YOUR OPTIONS
You have the choice of staying in the class or excluding yourself from the class. Each choice has certain risks and consequences. You have the right to discuss your decision with class counsel or your own attorney.
a. If you stay in the class, you will be bound by the result of the lawsuit, whether that result is favorable or unfavorable. You will receive a benefit if the Court determines that O'Connor and/or Evergreen violated the law. If O'Connor and/or Evergreen wins, you will be bound by the judgment and your claims will be extinguished against that party. However, you will not have to pay any money as a result of staying in the class.
b. As a class member you will be represented by class counsel. That representation by class counsel is entirely contingent -- that is, class counsel are paid only if they win the case and you need not pay them anything if they are not successful.
c. If you exclude yourself from the class, you (a) will not be bound by any judgment or disposition of this case, (b) will retain any claims you may have against O'Connor and Evergreen and (c) will not share in any recovery awarded by the Court or under any settlement with O'Connor and/or Evergreen.
d. If you wish to exclude yourself, send Edelman, Combs & Latturner (above address) a letter containing the name and number of this case and stating that you wish to be excluded. The letter must be received on or before February 15, 2000. If you mail a request for exclusion, you bear the risk of any problem with the mails.
e. If you elect to be excluded from the class, you may file an individual action (or intervene in this action). If you intend to choose this option, consult with an attorney prior to the expiration of the opt-out period. The one-year statute of limitations with respect to the TILA claim, and three-year statute of limitations with respect to the Illinois Consumer Fraud Act claim, which stopped running on October 16, 1998 when this action was filed, will begin running again upon your filing of the exclusion. You will have the same number of days to file suit as you had on October 16, 1998. If you want your own lawyer to represent you in an individual case, the terms of such representation are a matter for you and your lawyer to negotiate.
f. You also have the right to file an appearance yourself or through an attorney.
g. This notice and the lawsuit do not by themselves permit you to stop making car payments. CORRECT ADDRESS
If this Notice was sent to you at your current address, you do not have to do anything further to receive any further notices concerning this case. If it was forwarded by the postal service, or if it was otherwise sent to you at an address which is not current, you should immediately send a letter to Edelman, Combs & Latturner (above address) stating your past and current addresses.
AVAILABILITY OF FILED PLEADINGS
All papers filed in this case are available for you to inspect and copy at the office of the Clerk of the United States District Court for the Northern District of Illinois on the 20th floor of the Dirksen Federal Building, 219 S. Dearborn, Chicago, IL 60604, during regular business hours.
INQUIRIES
Any questions you or your counsel have concerning this notice should be directed to Edelman, Combs & Latturner (above address). Please include your return address on any letters, not just the envelopes.
