2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 1 of 8 Pg ID 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN -- SOUTHERN DIVISION

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1 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 1 of 8 Pg ID 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN -- SOUTHERN DIVISION EBOREE LARKIN on behalf of herself and a class of similarly situated individuals Plaintiff -vs- NEW CENTURY AUTO SALES, INC. d/b/a RIGHTWAY AUTOMOTIVE CREDIT, Case No. Hon. DEMAND FOR JURY TRIAL Defendant COMPLAINT & JURY DEMAND Eboree Larkin states the following claims for relief: JURISDICTION 1. This court has jurisdiction under the Truth In Lending Act, 15 U.S.C. 1640(e) and 28 U.S.C. 1331, This court may exercise supplemental jurisdiction over the related state law claims arising out of the same nucleus of operative facts which give rise to the Federal law claims under 28 U.S.C PARTIES 3. The Plaintiff to this lawsuit is Eboree Larkin who resides in Warren, MI. 4. The Defendants to this lawsuit is New Century Auto Sales, Inc. doing business as Rightway Automotive Credit ( Rightway ) which is a corporation doing business in Michigan at 8411 Telegraph Road, Taylor, MI 48180, and which by statute and condition of licensing, may be served through the Michigan Department of State, Compliance Division, 3 rd Floor Treasury 1

2 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 2 of 8 Pg ID 2 Building, 430 W. Allegan Street, Lansing, MI VENUE 5. The transactions and occurrences which give rise to this action occurred in Wayne County. 6. Ms. Larkin is a citizen of the State of Michigan and resides in Wayne County. 7. Venue is proper in the Eastern District of Michigan. GENERAL ALLEGATIONS 8. On November 29, 2010, Ms. Larkin went to Rightway to buy purchasing a car. 9. Ms. Larkin chose a 2001 Pontiac Sunfire. 10. Rightway presented a retail purchase agreement to Ms. Larkin on December 14, 2010 which set forth the terms under which she would purchase the Sunfire on credit. 11. Ms. Larkin executed the contract obligating her to purchase the Sunfire. 12. Rightway presented a retail installment sale contract to Ms. Larkin 13. Ms. Larkin executed that retail instalment sale contract on December 14, Ms. Larkin gave a down payment of $800 at the time that she executed those documents. 15. After purchasing the vehicle, Rightway called Ms. Larkin back to the dealership to sign a new retail purchase agreement and retail installment sale contract for the Sunfire. 16. Ms. Larkin returned to the dealership on December 21, 2010 and executed new a retail purchase agreement and retail installment sale contract. 17. Rightway backdated both of those documents to reflect that the contracts were executed on December 14, At the time that Rightway prepared the retail installment sale contract, Rightway included a discount fee in the amount financed. 2

3 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 3 of 8 Pg ID Rightway did not disclose that the amount financed for the vehicle included a discount fee, and concealed this fact from Ms. Larkin at the time of the sales. 20. The Discount fee charged to Ms. Larkin which was included in the amount financed should have been disclosed as a finance charge. 21. Rightway did not include the discount fee in the finance charge. 22. Consequently, Rightway failed to properly disclose the true Annual Percentage Rate to Ms. Larkin. 23. The true Annual percentage rate exceeded 25%. PRACTICES AND POLICIES OF DEFENDANT 24. Rightway engaged in a policy and practice of a. imposing a discount fee on its customers and improperly characterizing those charges as part of the amount financed rather than the finance charge. b. calculating the APR of the transaction assuming the improperly characterized discount fee to be a part of the amount financed rather than as a finance charge. c. Charging its customers APRs in excess of the statutorily allowed 25%. d. Failing to properly disclose to its customers the true amount financed associated with its retail installment contracts. e. Failing to properly disclose to its customers the true finance charge associated with its retail installment contracts. f. Failing to properly disclose to its customers the true APR associated with its retail installment contracts. g. Concealing these facts from its customers. 3

4 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 4 of 8 Pg ID Rightway uniformly engaged in these practices in relation to its customers by adhering to a written policy. CLASS ALLEGATIONS 26. This action is brought as a class action on behalf the following class(es) of individuals a. Class 1 (Truth In Lending Act) i. all persons in this state of Michigan ii. who purchased a vehicle from Rightway within the thee years preceding the filing of this action. iii. whose retail installment sales contract included a discount fee which was disclosed by Rightway an amount financed. b. Class 2 (MVSFA/Credit Reform Act) i. all persons in this state of Michigan ii. who purchased a vehicle from Rightway within the thee years preceding the filing of this action. iii. whose retail installment sales contract included a discount fee which was disclosed by Rightway an amount financed. iv. whose contract would have exceeded a 25% APR had Rightway included the discount fee in the finance charge. 27. The class of persons to be represented is so numerous that joinder of all members is impractical. 28. There are questions of law and fact common to the class, including: a. Whether Rightway regularly pays discount fees. 4

5 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 5 of 8 Pg ID 5 b. Whether those discount fees constitute a finance charge for purposes of the Truth in Lending Act. c. Whether Rightway regularly includes those discount fees in the amount financed. d. Whether Rightway regularly calculates its APR's assuming its discount fees to be a part of the amount financed rather than the finance charge. e. Whether Rightway charges effective APR's in excess of 25%. 29. Ms. Larkin claim is typical of the claims of all the potential class members. All are based on the same legal and remedial theory. 30. Ms. Larkin will fairly and adequately protect the interest of the class. Ms. Larkin has retained counsel who is experienced and handling class actions and FDCPA claims. Neither Ms. Larkin nor their counsel have any interests which may conflict with the interests of the class. 31. Certification of the class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is appropriate in that: a. The questions of law or fact common to the members of the classes predominate over any questions affecting an individual member. b. a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 32. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure is also appropriate in that defendants have acted on grounds generally applicable to the class thereby making appropriate declaratory relief with respect to the class as a whole. COUNT I Truth In Lending Act (Rightway) 5

6 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 6 of 8 Pg ID Ms. Larkin incorporates the preceding allegations by reference. 34. At all relevant times Rightway in the ordinary course of its business regularly extended or offered consumer credit for which a finance charge is, or may be imposed or which, by written agreement is payable in more than 4 installments and is the person to whom the transaction which is the subject of this action is initially payable, and is a creditor under TILA, 15 U.S.C. 1602(f) and regulation Z 226.2(a)(17). 35. Rightway failed to accurately disclose the finance charge, amount financed and the annual percentage rate applicable to the retail installment sale contract in violation of 15 U.S.C. 1638; 16 CFR Ms. Larkin suffered damages as a result of this violation of the TILA. COUNT II Motor Vehicle Sales Finance Act (Rightway) 37. Ms. Larkin incorporates the preceding allegations by reference. 38. This claim is brought under the Michigan Motor Vehicle Sales Finance Act ("MVSFA"), M.C.L et seq. 39. Rightway imposed charges which were not properly disclosed pursuant to the TILA and the MVSFA. 40. Rightway imposed finance charges in excess of those authorized under the MVSFA and Credit Reform Act. 41. Consequently, Rightway imposed finance charges upon Ms. Larkin which are not authorized by the MVSFA in violation of M.C.L Ms. Larkin suffered damages as a result of this violation of the MVSFA. COUNT III Michigan Credit Reform Act (Rightway) 6

7 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 7 of 8 Pg ID Ms. Larkin incorporates the preceding allegations by reference. 44. This claim is brought under the Credit Reform Act, M.C.L et seq, which will be referred to as the CRA throughout the remainder of this complaint. 45. Rightway is a regulated lender within the meaning of the CRA, M.C.L et seq. 46. Rightway imposed upon Ms. Larkin's fees for finance charges in excess of 25% per annum which are in excess of those authorized by the CRA, M.C.L et seq. 47. Ms. Larkin suffered damages as a result of this violations of the CRA. JURY DEMAND 48. Eboree Larkin demands a jury trial in this case. REQUEST FOR RELIEF Plaintiff requests that this Honorable Court grant the following relief: a. Certify this matter as a class action. b. Assume jurisdiction over this case including all supplemental claims. c. Actual damages. d. Award statutory and exemplary damages. e. Award statutory costs and attorney fees. Respectfully Submitted, LYNGKLIP & ASSOCIATES CONSUMER LAW CENTER, PLC By: S/ Ian B. Lyngklip Ian B. Lyngklip (P47173) Attorney For Eboree Larkin Northwestern Highway, Ste. 206 Southfield, MI (248)

8 2:12-cv PDB-MJH Doc # 1 Filed 09/05/12 Pg 8 of 8 Pg ID 8 Dated: September 5,

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