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Jeffrey Schulken, et al v. Washington Mutual Bank

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


July 20, 2011

JEFFREY SCHULKEN, ET AL.,
PLAINTIFFS,
v.
WASHINGTON MUTUAL BANK, HENDERSON, NV, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFFS LEAVE TO AMEND

I. INTRODUCTION 17

Jeffrey Schulken and Jenifer Schulken (collectively, "Plaintiffs") bring this putative class action against Washington Mutual Bank ("WaMu") and JPMorgan Chase ("Chase") (collectively, "Defendants"), alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601, et 20 seq., and its implementing statute, Regulation Z, 12 C.F.R. 226.1, et seq.; violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq.; and breach of 22 contract. Generally, Plaintiffs allege that Defendants improperly suspended and reduced credit 23 limits on home equity lines of credit ("HELOCs").

Plaintiffs filed a motion for class certification on June 2, 2011, as scheduled in the Case Management Order entered by this Court on February 9, 2011. See Dkt. No. 69. Also on June 2, 2011, the Court held a Case Management Conference (CMC). At the CMC, Plaintiffs stated that 27 they intended to amend their Third Amended Complaint to change the class definitions to match the definitions submitted in their motion for class certification. The Court asked the parties to 2 stipulate to the proposed amendments if possible. On June 9, 2011, Plaintiffs filed a motion for 3 leave to file a fourth amended complaint (4AC). Mot., Dkt. No. 90. The hearing on this motion 4 was set for September 8, 2011. The Court finds this matter suitable for decision without oral 5 argument, and hereby VACATES the September 8, 2011 hearing. See Civ. L. R. 7-1(b). For the 6 reasons set forth below, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiffs' motion 7 for leave. 8

The proposed 4AC adds significant factual detail to the allegations in the Third Amended Complaint (TAC). In addition, the 4AC adds several claims and amends the original class to define two classes, each with one subclass. The TAC asserted that Plaintiffs obtained a $250,000 HELOC from WaMu in October, 2005. TAC ¶ 10. The HELOC was secured by their primary 13 residence, and Plaintiffs allege it was used primarily for personal family and household purposes.

TAC ¶ 17. On September 25, 2008, the United States Office of Thrift Supervision seized WaMu 15 and put it into FDIC receivership. TAC ¶ 11. After this, Chase purchased and assumed "all 16 mortgage servicing rights and obligations of" WaMu, including the Plaintiffs' HELOC account.

On March 13, 2009, Plaintiffs received an "Income Verification Request" letter from Chase requesting certain financial information. TAC ¶ 18. In response to the letter, Plaintiffs submitted 20 financial information. TAC ¶ 19. On March 19, 2009, Plaintiffs discovered that their HELOC had 21 been suspended. TAC ¶ 20. The following day, Plaintiffs received a letter from Chase stating that 22 their HELOC had been suspended for failure to submit the financial information requested on March 13, 2009. TAC ¶ 20. Plaintiffs alleged that their income did not materially change or 24 decrease at any time, and that the Defendants had no reasonable basis to conclude that Plaintiffs 25 would be unable to meet the terms of their HELOC. TAC ¶ 23.

consisting of "All WAMU and Chase HELOC borrowers in the United States who had their 28 respective HELOCs reduced or suspended due to WAMU's or Chase's conclusion that the TAC ¶ 12. 18

II. BACKGROUND 9

On the basis of these allegations, Plaintiffs sought (in the TAC) to represent a class borrower would be unable to fulfill their payment obligations due to a purported material adverse 2 change in financial circumstances." TAC ¶ 26. On behalf of this class, Plaintiffs asserted the 3 following claims for relief: 1) a declaration that Chase violated TILA and Regulation Z based on 4

Chase's suspension of HELOC accounts in the absence of a material change in income or a 5 reasonable belief that borrowers would be unable to repay their debt obligations; 2) actual and 6 statutory damages for the same TILA and Regulation Z violations asserted in the first claim; 3) 7 actual and statutory damages under TILA and Regulation Z for Defendants' failure to give notice 8 of the specific reasons that HELOC accounts were suspended; 4) damages for breach of the 9

HELOC contracts based on suspension of HELOC accounts without any material change in income 10 or reasonable belief that borrowers would be unable to repay their debt obligations; and 5) HELOC reinstatement and restitution for UCL violations based on unlawful acts (violations of TILA andRegulation Z), unfair acts (suspending accounts without advance notice), and asserted fraudulent 13 acts (allegedly false statements or material omissions made when Chase communicated with 14 customers about suspended HELOC accounts).

In the 4AC, Plaintiffs expand upon the allegations in the TAC. Plaintiffs allege that the Income Verification Letters were sent to borrowers under the "4506-T Program," a program 17 designed to reach borrowers ineligible for other HELOC-suspension programs designed by Chase 18 to suspend HELOCs. 4AC ¶ 7. Plaintiffs allege that under the 4506-T Program, Chase requested 19 that customers fill out an IRS Form 4506-T (a Request for Transcript of Tax Return) and recent 20 paystubs. 4AC ¶ 8. Plaintiffs allege that Chase then suspended the accounts of all "Incomplete 4506-T form, but not both). 4AC ¶ 11. Plaintiffs allege Chase also suspended the accounts of "Non-Responders," those who failed to submit any response to the Income Verification Letters 24 within 14 days. Id. A third group of customers provided both signed 4506-T forms and paystubs.*fn1

Responders," customers who provided only one of the requested items (either paystubs or the For these customers, Chase calculated a Debt-to-Income ratio (DTI) based on the submitted 26 information. 4AC ¶ 13. If the DTI was below a certain threshold, the account was not suspended(or was reinstated) after a "reasonableness review." 4AC ¶ 14. If the DTI was above a certain 2 threshold, Chase suspended the HELOC automatically. Id. If the DTI was between these two 3 thresholds, Chase compared the present DTI to the DTI at origination. These customers' HELOCs 4 could be suspended based on factors including their disposable income and their relationship with 5 the bank. Id. 6

7 household expenses, and "occasionally, but by no means primarily," to pay for expenses relating to 8 the family daycare the Schulkens ran out of their home since 2000. 4AC ¶¶ 17-18. Plaintiffs 9 allege that they received an Income Verification Letter on March 17, 2009, and that they returned it 10 to Chase the same day with a signed 4506-T form and an annotation that they are both self-

In the 4AC, Plaintiffs allege that they used their HELOC to pay for personal, family and

employed. 4AC ¶ 21. Plaintiffs allege that two days later, they found that Chase had suspended their HELOC. 4AC ¶ 21. On March 21, 2009, they received a letter from Chase stating that the 13 suspension was based on Chase's inability to verify the Plaintiffs' financial information, because 14 they did not submit paystubs. 4AC ¶ 21. 2009, the Plaintiffs received a letter from Chase stating that their HELOC would remain suspended 17 because Chase determined that Plaintiffs had insufficient income to satisfy their debt obligations. 4AC ¶ 25. Plaintiffs contacted Chase to dispute this, arguing that their income had "hardly 19 changed" since they opened the HELOC account. 4AC ¶ 26. Chase responded that because the 20

Plaintiffs' monthly income at origination was listed as $11,500, their present income was 21 materially lower. 4AC ¶ 27. The Plaintiffs responded that they had never earned $11,500 monthly, 22 and that WaMu must have intentionally misrepresented their income if their loan application stated 23 this. 4AC ¶ 28-29. Plaintiffs allege that the "vast majority" of HELOC accounts processed 24 through the 4506-T Program were "stated income" loans in which the borrower's income had not 25 been objectively verified at origination. 4AC ¶ 29. Plaintiffs further allege Chase's awareness that 26 comparing customers' verified present incomes to their stated incomes would "be more likely to 27 falsely demonstrate adverse changes in borrower financial conditions when none actually had 28 occurred," and intentionally used this method of DTI comparison to "increase the likelihood of

After this, the Plaintiffs provided additional financial information to Chase. On March 31,issuing a suspension." 4AC ¶ 29, 33. Plaintiffs allege that their income had not materially 2 decreased since origination of their HELOC, that they had never missed or been late with a 3 payment on the HELOC, that their home had not significantly decreased in value, and that they had 4 substantially paid down the principal balance on the account since origination. 4AC ¶ 31. 5

Plaintiffs allege that their HELOC contract allowed Chase to request "a current financial statement, a new credit application, or both," but that this language did not authorize Chase to 7 request the 4506-T form or paystubs, or to suspend their account when they failed to produce this 8 information. 4AC ¶ 34. Plaintiffs allege that other potential class members' HELOC agreements 9 were silent about submission of additional information, and thus that Chase was not authorized to 10 request such information from those customers, either. 4AC ¶ 34. ne the following classes and subclasses:

Based on these allegations, Plaintiffs defi

Inability to Verify Class:

All HELOC borrowers nationwide who were parties to the Schulken HELOC Contract and whose HELOCs Chase blocked through the 4506-T Program when the customers did not provide either a complete IRS Form 4506-T, paystubs, or both, upon Chase's request.

Inability to Verify California Subclass:

All Inability to Verify Class members whose homes securing the HELOCs are located in California.

Stated Income Class:

All heritage WaMu HELOC borrowers nationwide whose HELOCs were originated based on stated incomes but who were blocked by Chase at any time through the 4506-T Program based upon a determination by Chase that the borrowers' verified current financial information showed a material adverse change in financial circumstances from their stated incomes on file when they opened their accounts.

Stated Income California Subclass:

All Stated Income Class members whose homes securing the HELOCs are located in California.

and statutory damages for TILA and Regulation Z violations on behalf of the Inability to Verify Class, based on the suspension of HELOCs due to customers' failure to provide 4506-T forms, 26 paystubs, or both; 2) alternatively, injunctive relief and a declaration that Chase violated TILA and 27

Regulation Z based on violations asserted in the first claim; 3) HELOC reinstatement and statutory 28 damages for TILA and Regulation Z violations on behalf of the Stated Income Class, based on the

Plaintiffs assert the following claims on behalf of these classes: 1) account reinstatement use of verified current DTI as compared to unverified origination DTI as a basis for HELOC 2 suspension; 4) alternatively, injunctive relief and a declaration that Chase violated TILA and 3

Regulation Z based on violations asserted in the third claim; 5) HELOC reinstatement and statutory 4 damages for TILA and Regulation Z violations on behalf of the Inability to Verify Class, based on 5 insufficient notice of HELOC reductions; 6) HELOC reinstatement for breach of contract on behalf 6 of the Inability to Verify Class; 7) HELOC reinstatement for breach of contract on behalf of the 7

Stated Income class; and 8) injunctive relief for UCL violations on behalf of the California 8 subclasses, based on unlawful and unfair acts as alleged in the other claims, and on additional 9 alleged unfair and fraudulent acts.

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of course within 21 days of serving it. Fed. R. Civ. Pro. 15(a)(1). After that initial period 13 has passed, amendment is permitted only with the opposing party's written consent or leave of the 14 court. Id. 15(a)(2). Rule 15 instructs that "[t]he court should freely give leave when justice so 15 requires." Id. Although this rule "should be interpreted with extreme liberality, leave to amend is 16 not to be granted automatically." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (internal citation and quotation marks omitted). Courts commonly consider four factors when 18 determining whether to grant leave to amend: (1) bad faith on the part of the movant; (2) undue 19 delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment. Foman v. 986 (9th Cir. 1999). "[I]t is the consideration of prejudice to the opposing party that carries the 22 greatest weight." Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, 833 F.2d at 185). 23

"Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a 24 presumption under Rule 15(a) in favor of granting leave to amend." Id. (citation omitted). "The 25 party opposing leave to amend bears the burden of showing prejudice." Serpa v. SBC Telecomms.,

IV. DISCUSSION 28

Davis, 371 U.S. 178, 182 (1962); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, Inc., 318 F. Supp. 2d 865, 870 (N.D. Cal. 2004) (citing DCD Programs, 833 F.2d at 187).

allegations and claims relating to Chase's comparison of stated income and verified income. Chase 3 moves on two grounds. First, Chase argues that Plaintiffs unreasonably delayed seeking to amend 4 their complaint, because they knew that their own HELOC was suspended based on a comparison 5 of verified and stated income as of April 2009 and therefore could have stated this claim much 6 sooner. Second, Chase argues that it will be prejudiced if the Court allows the amendment, 7 because it will lose the opportunity to challenge Plaintiffs' individual claims in a dispositive 8 motion to be decided before class certification.*fn2 Neither argument provides a sufficient basis for 9 the Court to deny leave to amend.

comparisons sooner than they did. In the proposed 4AC, Plaintiffs allege that they were aware of 13 the circumstances of their own HELOC suspension before the initial complaint was filed. See 4AC 14

¶¶ 27, 28 ("Mr. Schulken explained to Chase that the $11,200 figure was inaccurate, that neither he 15 nor his wife had ever provided such an inflated income figure to WaMu, and that if the Schulkens' 16 loan file indicated such an income, then WaMu had intentionally misrepresented their income."). 17

HELOC contracts of potential class members, which they did not obtain until "starting in February 19

2011." However, Plaintiffs submitted their first four complaints without the benefit of this 20 discovery. It is not clear why the TILA and breach of contract claims asserted in the TAC could be 21 pled without discovery of class members' contracts while the income comparison claims could not. 22

In addition, while Plaintiffs complain that Chase failed to produce discovery of putative class 23 members' contracts and its policies until starting early in 2011, it appears that Plaintiffs could have 24 been more diligent in asserting their rights to discovery. For example, the Court granted-in-part 25 and denied-in-part Chase's third motion to dismiss in October, 2010. It is not clear why Plaintiffs 26 waited until a CMC in February 2011 to raise deficiencies in Chase's production with the Court. 27

Chase argues that Plaintiffs should be denied leave to amend their complaint to add the

a. Undue Delay

It does appear that Plaintiffs could have

stated their claims based on the income Plaintiffs argue that they could not assert this theory until they had additional detail regarding the applied its policy of income comparison to the entire class until discovery of this policy, it still 3 appears that Plaintiffs could have moved to amend their complaint before filing their motion for 4 class certification. Chase points out that by April 8, 2011, Plaintiffs' expert had articulated and 5 opined on the income comparison theory. Surely if Plaintiffs' expert could express his opinion of 6 the theory by that time, Plaintiffs had a good faith basis to plead claims based on the theory. Had 7

Plaintiffs moved to amend their complaint before submitting their motion for class certification, 8 these issues could have been resolved before the deadline for filing a class certification motion. amend should be denied. Since the filing of the initial complaint, Chase has been on notice that

Even accepting Plaintiffs' argument that they could not, in good faith, allege that Chase

Despite all of this, the Court finds that Plaintiffs' delay is not so significant that leave to

Plaintiffs alleged Chase suspended HELOCs in the absence of a material change in customer income. The additional details Plaintiffs seek to add in the 4AC regarding comparison of stated 13 and verified income flesh out a theory Plaintiffs have stated all along. Clearly, it would have been 14 preferable for Plaintiffs to move to amend their complaint as soon as possible-and certainly 15 before filing a motion for class certification asking the Court to certify classes that were not even 16 described in the operative complaint. However, the fact that Plaintiffs moved to amend in a matter 17 of days after their class certification motion was filed enabled the Court to address this issue before 18 the class certification motion itself. Delay alone is not a sufficient ground to deny leave to amend. 19

See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) ("Undue delay by itself, however, is 20 insufficient to justify denying a motion to amend.").

22 complaints, but these cases are distinguishable. In one, discovery had been closed for nine months 23 when the motion for leave to amend was filed, and the court noted it would likely need to be 24 reopened if the amendments were allowed. In re Taco Bell Wages and Hours Actions, No. 1:07-25 cv-01314 OWW DLB, 2011 U.S. Dist. LEXIS 47758 at *16-*18 (E.D. Cal. May 3, 2011). In the 26 other case, the court denied leave to amend not solely based on the plaintiff's delay, but also 27 because amendment would prejudice the defendant by vastly increasing the scope of discovery, and 28 would be futile. Mansfield v. Midland Funding, LLC, No. 09cv358 L(WVG), 2011 U.S. Dist.

Chase cites two cases in which courts denied motions for leave to amend class action LEXIS 34102 at *12-*17 (S.D. Cal. Mar. 30, 2011). As discussed below, the Court rejects Chase's 2 argument that Chase will be prejudiced by the proposed amendment. Plaintiffs' delay in moving to 3 amend, by itself, is insufficient to deny leave to amend. Bowles, 198 F.3d at 758. However, the 4

Court asks that both parties cooperate to avoid any further delays in this litigation. Such delays 5 unnecessarily complicate case management and waste the resources of the Court and the parties.

cites no authority for either of its prejudice arguments, and the Court does not find them 9 persuasive.*fn3 Chase argues that because the deadline for filing summary judgment motions relating 10 to the named Plaintiffs' individual claims has passed, Chase will lose the opportunity to have such

b. Prejudice

Chase argues that it will be prejudiced if Plaintiffs are permitted to file their 4AC. Chase

a motion regarding the income comparison claims determined before class certification is decided.*fn4

Although it would have been preferable to decide such a motion before considering class 13 certification, this is not a sufficient basis to deny Plaintiffs leave to amend. Chase can move for 14 summary judgment at any time before the November 17, 2011 deadline for dispositive motions. 15

Because Chase has not yet had an opportunity to move for summary judgment of the Schulken's 16 individual income comparison claims, it may do so before the November 17, 2011 deadline. 17

18 to dismiss the "income comparison" claims before class certification is decided. Chase has raised 19 some of the arguments it says it might have brought in a motion to dismiss in its opposition to the 20 motion for class certification (for example, its argument that the named Plaintiffs do not have 21 standing to seek certain relief). The Court will address those arguments when it resolves the 22 renewed class certification motion, if any. Chase also states its belief that Plaintiffs' "income 23 comparison" claims should be dismissed for failure to state a claim. However, Chase could have 24 opposed leave to amend on the grounds of futility by demonstrating that Plaintiffs had failed to 25 state a claim, but Chase chose not to. If Chase has a meritorious argument that the newly-added 26

income comparison theory fails to state a claim, Chase may move to dismiss in lieu of answering 2 the 4AC. However, Chase is cautioned against filing a meritless motion to dismiss. Three motions 3 to dismiss have already been decided in this case. 4

equitable relief under TILA because such relief is not available as a matter of law. Although Chase 7 did not raise this argument in its opposition to the motion for leave to amend, the Court will 8 address it now because there is no point in granting leave to amend to claim relief that is not 9 available. Chase relies on an opinion by the Eleventh Circuit holding that TILA does not allow 10 equitable relief (such as injunctive or restitutionary relief). Christ v. Ben. Corp., 547 F.3d 1292

TILA, with the power to enforce compliance through 'all of its functions and powers,' including 14 orders of restitution." Christ, 547 F.3d at 1297 (internal brackets and citations omitted). In 15 addition, Congress provided private rights of action to consumers, but limited the potential relief to 16 actual damages, statutory damages, and attorney's fees and costs.*fn5 Id. In the context of class 17 actions, Congress further limited the potential relief by capping the recovery at "the lesser of $500,000 or 1 per centum of the net worth of the creditor." Id. In light of TILA's "comprehensive 19 statutory scheme of remedies" and Congress's silence as to any equitable relief available to private 20 litigants, the Eleventh Circuit found no implied right to injunctive or other equitable relief under 21

As Chase points out, numerous district courts outside the Eleventh Circuit have followed

23 the Eleventh Circuit's reasoning, or independently arrived at the same conclusion, and ruled that 24 equitable relief is not available to individuals or classes asserting TILA violations. See, e.g., 25 *32-33 (S.D. Cal. June 1, 2010) (relying on Christ and finding that equitable remedies of 27 restitution and disgorgement are not available under TILA); Volovnik v. Benzel-Busch Motor Car 28

Case No.: 09-CV-02708-LHK

ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFFS LEAVE TO AMEND

c. Futility in Amendment

In its opposition to the class certification motion, Chase argued that Plaintiffs cannot seek

(11th Cir. 2008). The Eleventh Circuit noted that in enacting TILA, Congress "designated certain federal agencies, including the Federal Trade Commission, as the primary enforcement agencies of TILA. Id., 547 F.3d at 1289. 22

Watkinson v. MortgageIT, Inc., No. 10-CV-327 - IEG (BLM), 2010 U.S. Dist. LEXIS 53540 at Corp., No. 09 Civ. 10595 (DAB) (JLC), 2010 U.S. Dist. LEXIS 97046 at *25-26 (S.D.N.Y. July 29, 2010) (following the "trend among other courts" in finding enumerated TILA remedies 3 exclusive); Reeder v. HSBC USA, Inc., No. 09-cv-2043, 2009 U.S. Dist. LEXIS 114651 at *26-27 4

(N.D. Ill. Dec. 8, 2009) (relying on Christ and finding that TILA does not provide injunctive relief 5 for class claims). In addition, courts in this district have relied on similar reasoning to find that 6 other statutory remedies are exclusive. See Yasin v. Equifax Info. Servs., LLC, No. C-08-1234 7

MMC, 2008 U.S. Dist. LEXIS 111051 at *6-11 (N.D. Cal. July 16, 2008) (finding no implied right 8 to equitable relief under the Fair Credit Reporting Act in part based on delegation of enforcement 9 of the FCRA to federal agencies).

Judge Alsup, of this Judicial District, has held otherwise. In Hofstetter v. Chase Home Fin., LLC, No. C 10-01313 WHA. 2011 U.S. Dist. LEXIS 38124 at *27-*28 (N.D. Cal. Mar. 31, 2011),

Judge Alsup held that "[t]he cited TILA provision does not address equitable remedies, much less 13 preclude them." This Court respectfully disagrees with Judge Alsup, and finds the Eleventh 14

Circuit's reasoning in Christ persuasive. The Ninth Circuit has warned against reading too much 15 into statutory silence, and that a court must "construe the details of an act in conformity with its 16 dominating general purpose . . . read text in the light of context and . . . interpret the text so far as 17 the meaning of the words fairly permits so as to carry out in particular cases the generally 18 expressed legislative policy." Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1169 19

(9th Cir. 2006). If TILA simply provided a private right of action and the enumerated remedies, it 20 would be harder to say whether Congress' silence regarding injunctive relief for private actions 21 indicated an intention to preclude such relief. But in light of TILA's "comprehensive statutory 22 scheme of remedies," including designation of the FTC as the primary TILA enforcement agency, 23 the Eleventh Circuit's conclusion that Congress intentionally limited the remedies available to 24 private parties bringing TILA claims gains support. See Christ, 547 F.3d at 1289. This conclusion 25 is further supported by the fact that Congress has explicitly limited the remedies available in class 26 actions asserting TILA claims. Plaintiffs characterize their claim to $500,000 in statutory damages 27 as "incidental" to an injunction requiring reinstatement of millions of dollars in HELOC accounts, 28 but TILA says that $500,000 is all Plaintiffs, as a class, can recover. 15 U.S.C. § 1640(a)(2)(B).

"In the few cases that have considered the applicability of Rule 23(b)(2) classes in a TILA context, 2 classes have been rejected where monetary relief was the primary objective of the litigation." 6 3

Plaintiffs' first through fifth claims in the proposed 4AC seek injunctive relief based on asserted TILA violations. Because the Court concludes that Plaintiffs are not entitled to this relief 6 as a remedy for a TILA violation, Plaintiffs' request for leave to amend their complaint to claim 7 injunctive relief for the asserted TILA violations is DENIED. Otherwise, Plaintiffs' request for 8 leave to amend is GRANTED. 9

Accordingly, Plaintiffs are GRANTED leave to amend their complaint as specified in theAC, but must remove any claims to a right to injunctive relief based on violations of TILA orRegulation Z. Plaintiffs shall file their 4AC within seven calendar days of the date of this Alba Conte & Herbert Newberg, Newberg on Class Actions § 21:9 (4th ed. 2002).

V. CONCLUSION

Order. In light of this Order, the briefing on the pending motion for class certification is largely 14 focused on irrelevant issues. Accordingly, the Court DENIES the motion for class certification 15 without prejudice. The hearing on this motion set for July 21, 2011 is hereby VACATED. The 16

CMC prepared to discuss ADR. 18

19 this Order. In briefing a renewed motion for class certification, the Court would appreciate it if 20 the parties would address whether Plaintiffs may seek injunctive relief for their breach of contract 21 claims, and what subpart of Rule 23(b) Plaintiffs should move under to certify a class seeking 22 statutory damages under TILA. The motion shall be briefed under the Civil Local Rules (meaning 23 that the opposition is due 14 days after the motion is filed, and the reply is due 7 days after the 24 opposition is filed). See Civ. L.R. 7-3. The class certification motion is set for hearing on October 6, 2011 at 1:30 p.m. in courtroom eight on the fourth floor. Otherwise, the case schedule remains 26 as set.

CMC scheduled to follow the hearing will go forward as planned. The parties shall come to the Plaintiffs shall file any renewed motion for class certification within 21 days of the date of

IT IS SO ORDERED.


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