 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
WAREHOUSE FURNISHING v. FARMERS FURNITURE10/10/1997
e named plaintiffs' claims are typical of the class (and they must be for this to be properly certified as a class action), then it is obvious that Farmers had a need for lien insurance.
I am of the opinion that the class was properly certified under Rule 23(b), Ala. R.Civ.P.; however, I think the trial court erred in making Farmers pay the cost of notice. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). I do not believe that notice is mandatory, since this involves a Rule 23(b)(2) class.
I agree that it is for the trier of fact to determine whether Farmers acted "deliberately" when it included the nonfiling premium as a part of the amount financed rather than as a finance charge.
MADDOX and SEE, JJ., concur.
I dissent. Once again, the Court seems to be creating a cause of action specifically for the use of plaintiffs in class actions. The
$10.00 charge for nonfiling insurance was not a finance charge. It was a charge intended to provide for the seller-creditor protection in lieu of the protection provided by a UCC filing, and, therefore, it is excluded from the calculation of the finance charge. Federal Truth-In-Lending Act, 15 U.S.C. § 1605(d). It costs the purchaser no more to pay this fee for nonfiling insurance than he or she would pay if the lender filed a UCC financing statement and imposed on the purchaser the charge for filing.
If this Court is trying to stop businesses from selling to people who can buy only on credit, then it is doing a good job. With rulings like this, the Court seems to be attempting to become a babysitter for people in every walk of society.
The nonfiling fee is not a finance charge. It is a protection charge. Therefore, I dissent.
HOUSTON , Justice (concurring in part and dissenting in part).
HOOPER, Chief Justice (dissenting).
|