• Kimberly A. Kralowec
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« "Rookie Mistakes" in brief writing | Main | More thoughts on the Fireside Bank oral argument »

Monday, February 12, 2007



How odd. A class representative does not have to file a timely case so long as some members were harmed in the statutory period? Is that what this case means?

Kimberly A. Kralowec

No, as I read the decision, the class representatives timely filed their original complaint, which was an individual action only. Later, they amended their complaint to add class allegations. If they had waited until that later date to file their own suit to begin with, their individual claims would have been time-barred, and they could not have proceeded at all. But because their original filing was timely, the Court of Appeal held they could represent a class consisting of themselves and all similarly situated persons whose claims were not time-barred.


That's what I thought too. Then I went back and read. Loan was in "April 2002" filed May 22, 2003. Class was defined as loans obtained post May 22, 2002. Slip Op. 2. One year statute. So I am still perplexed.


That's what I thought too. Then I went back and read. Loan was in "April 2002" case filed May 22, 2003. Class was defined as loans obtained post May 22, 2002 as well. Slip Op. 2. TILA=One year statute. So I am still perplexed.

Kimberly A. Kralowec

Yes, I noticed that. Maybe the loan originated in April 2002, but the cause of action was based on some other conduct that occurred in May 2002?? Or maybe it's a typo in the opinion. In any event, the Court did conclude, for whatever reason, that the original complaint was timely filed and that's the assumption on which its adequacy analysis was based.


As the counsel that argued the case to the Court of Appeal, I can definitively clarify. The complaints in the record are clear: the plaintiffs all signed their loan documents at the very end of May. The opinion may have picked up the allegation that the O'Connors applied in April. Had the Plaintiffs been precluded by a statue of limitations, disclosed on the face of the complaint, the Defendant would certainly have detected that issue.

Kimberly A. Kralowec

Got it. The plaintiffs applied for their loans in April, but the loans closed at the end of May, so their complaint filed less than one year later was timely.


Well then the opinion makes complete sense. Unbelievable that the trial court would have ruled differently, IMHO.


So if both your individal and class claims are time-barred, it is still an open question whether the trial court can throw you out without giving you a chance to seek a substitute class rep. As I read the decision, two factors that distinguished the case from the Payne case were (1) the plaintiff's had individual claims that were not time-barred; and (2) the plaintiffs in Payne never asked for leave to get a substitute class rep. The opinion did not state what would happen if the plaintiff had only time-barred claims AND sought to get a new class rep. Arguably, under First American Title, a judge can throw you out of court, but it is hard to say for sure.

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