The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SECOND SCHEDULING CONFERENCE ORDER
Plaintiff's Opposition and its X-MSJ Filing
Defendant's Reply re its X- MSJ Filing
Defendant's Opposition to Plaintiff's X-MSJ Filing
Plaintiff's Reply to its XMSJ Filing
Hearing Date for X-MSJ: 8/16/10 10:00 Ctrm. 3
I. Date of Scheduling Conference. February 11, 2010.
III. Summary of Pleadings
1. This case involves Plaintiff's purchase of a 2006 Harley-Davidson motorcycle on October 4, 2006. It is undisputed that during the course of Plaintiff's purchase transaction, Plaintiff dealt only with the selling dealer, (Golden Valley Harley Davidson, "Golden Valley," an authorized Harley-Davidson dealer) regarding the purchase and finance of the vehicle. Under that contract, Golden Valley arranged financing for the purchase of Plaintiff's motorcycle through HDCC. Plaintiff alleges that the motorcycle was defective and unrepaired after a reasonable number of repair attempts. Plaintiff voluntarily surrendered the motorcycle to HDCC in about August 2007.
2. California's Rees-Levering Automobile Sales Finance Act, Civ. Code §§ 2981, et seq. ("ASFA") requires lenders such as HDCC to provide a "notice of intent to dispose of a repossessed vehicle ("Notice") before it sells or otherwise disposes of a repossessed or surrendered vehicle. Civ. Code § 2983.2. If the lender fails to give a legally compliant notice, it loses its right to any "deficiency," or money due from the buyer/debtor. On or about September 4, 2007, HDCC sent Plaintiff a Notice that failed to comply with ASFA and the applicable provisions of the California Commercial Code, which are incorporated by reference into ASFA's requirements. CC § 2983.8.
3. In his Complaint for Restitution and Damages, Plaintiff and the class allege Defendant violated Rees-Levering Automobile Sales Finance Act, Civil Code §§ 2981 et seq. and Business and Professions Code §§ 17200, et seq. Plaintiff and the class seek restitution, damages, and such other legal and equitable relief as allowed by law, and attorney's fees and costs. As outlined in Plaintiff's complaint, Plaintiff is seeking to represent a class of persons that "consists of all persons from whom HDCC and its associates, affiliates, and subsidiaries claims it is owed a deficiency that was invalid due to HDCC's defective NOTICES(S) and its failure to comply with the notice requirements of ReesLevering." Complaint 4, ¶ 14.
4. Defendant's initial discovery responses have identified and produced two separate "notices of intent" during the relevant period and additionally identified thousands of putative class members. Substantially more than $5 million in total deficiencies exist related to those motorcycles that were sold as a result of transactions accomplished at various California dealerships.
1. Plaintiff did not purchase the motorcycle pursuant to a conditional sales contract, rather, Plaintiff financed his motorcycle purchase by obtaining a direct loan from HDCC's subsidiary, Eaglemark Savings Bank ("ESB") and ESB assigned its rights to HDCC. Plaintiff surrendered the motorcycle and HDCC provided Plaintiff with a Notice of Intent to Dispose of Repossessed Collateral ("Notice"). After the sale of the motorcycle, HDCC attempted to collect from Plaintiff, but Plaintiff failed to pay the remaining deficiency due on the loan. HDCC has filed an answer and affirmative defenses to Plaintiff's Complaint. In relevant part, HDCC denies that the Notice provided to Plaintiff failed to comply with applicable law and denies that Plaintiff's claims are appropriate for class treatment.
1. Jurisdiction exists under 28 U.S.C. §§ ...