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HERNANDEZ v. VIDMAR BUICK CO.

January 9, 1996

EUTIQUIO HERNANDEZ, etc., Plaintiff,
v.
VIDMAR BUICK CO., Defendant.



The opinion of the court was delivered by: SHADUR

 Eutiquio Hernandez ("Hernandez") has charged Vidmar Buick Co. ("Vidmar") with having violated (1) the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601-1693r, as implemented by Federal Reserve Board ("Board") Regulation Z ("Reg. Z"), 12 C.F.R. Part 226 *fn1" (Count I), and (2) the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/1 to 505/12 *fn2" (Counts II and V), by making misrepresentations in the retail installment contract used to finance Hernandez' purchase of a used car from Vidmar. Vidmar has moved for dismissal of the Complaint under Fed. R. Civ. P. ("Rule") 12(b)(6), and its motion is fully briefed and ready for decision.

 
1. On November 30, 1995 this Court decided that this action would not be maintained as a class action, stating its reasons for that determination in an oral ruling.
 
2. After more than an intervening month had elapsed--and when this opinion had already reached substantially final form--Hernandez' counsel has now tendered an extensive motion for reconsideration of the class certification issue.
 
3. In the meantime our Court of Appeals has for the first time expressed its approval of the sensible approach of a district court's sometimes choosing to address a substantive motion (even one brought under Rule 56) before making a Rule 23(c)(1) decision--essentially a recognition by the Court of Appeals that the latter Rule's directive to decide on certification "as soon as practicable after the commencement of an action brought as a class action" is not to be viewed as an inexorable mandate regarding the priority of decision ( Cowen v. Bank United of Texas, 70 F.3d 937, 1995 WL 691861, at *2 (7th Cir. 1995)). *fn3"
 
4. Accordingly Hernandez' motion for reconsideration is granted, and the November 30 order denying class certification is hereby made conditional (see Rule 23(c)(1)). When the open issues hereafter referred to in the substantive part of this opinion become ripe for resolution, this Court will be in a better position to decide whether the other substantive matters that have been posed by Hernandez' motion for reconsideration will need to be addressed at all.

 And now to the principal task at hand. For the reasons stated in this memorandum opinion and order:

 
1. Vidmar's Rule 12(b)(6) motion is denied except to the extent stated in the next numbered paragraph.
 
2. To the extent that Hernandez' TILA and Consumer Fraud Act claims are based on his theory that Vidmar misrepresented the service contract fee as non-negotiable by its placement of the reference to that fee in the retail installment contract, that aspect of Hernandez' claims is dismissed with prejudice.
 
3. Discovery and all other proceedings in this case are stayed until Board has taken official action on its proposed commentary to Reg. Z discussed in this opinion.

 Hernandez' Allegations4

 In February 1995 Hernandez bought a used car and an accompanying service contract from Vidmar. In connection with the financing of the transaction, the parties entered into a retail installment contract ("Contract"), which listed the "Itemization of the Amount Financed" in the manner shown in the right-hand column of the Appendix to this opinion.

 Two things about that "Itemization" should be noted at the outset. First, its format is dictated by the requirements of Reg. Z (with which Vidmar, like every other credit seller of consumer goods, must comply) and specifically comports with Board's model form H-3 as prescribed in Reg. Z and its Appendix H. Second, as to the focal point of the controversy between the parties--the $ 498 that is listed as paid to "Advantage"--it is plain from the service contract attached to Hernandez' Complaint that "Advantage" is simply the name of the service contract plan that is administered by a company named Western Diversified Services, Inc. ("Western"). *fn5"

 In any event, this entire lawsuit grows out of the manner in which the $ 498 service contract fee has been disclosed in the Contract. Although the Contract reflects that sum (on the line reading "$ 498.00 to Advantage") as an amount "paid to others" ("others" being anyone other than Vidmar), in fact Vidmar paid only a small portion of that fee over to third party Western and retained the rest.

 Hernandez' quarrel is not with Vidmar's having kept some of the service contract fee as such, but rather with the manner in which the fee was disclosed in the Contract. First, he charges Vidmar with misrepresentation because its having pocketed a portion of the $ 498 meant that not all of it was an amount actually "paid to others," as the Contract says. Second, he takes issue with the location of the reference to the service contract fee in the Contract: Because it is placed in a space amid such "non-negotiable" charges as "license, title & taxes" and insurance ...


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