In Ramirez v. Balboa Thrift & Loan, 2013 WL 1151496 (Cal.App. 4 Dist. 2013), the California Court of Appeal for the 4th District reversed in an unpublished decision a trial court’s denial of class certification in an NOI case, finding that the trial court erred in finding that a creditor ought to be able to litigate individual issues of fraud in the credit applications of the putative class in order to defeat class certification.
Ramirez challenges the court’s reliance on section 2983.3(b)(1) to deny her class certification motion. We agree this ground was not a proper basis for denying class certification. The court’s conclusion was based on an improper legal assumption, i.e., that Balboa would be entitled to assert this statutory exception as a valid affirmative defense to the UCL claim alleged by class members who were given a reinstatement right in the NOI. ¶ Under section 2983.3, a defaulting buyer whose car has been repossessed by or voluntarily surrendered to a creditor must be given the opportunity to reinstate the contract, absent proof of certain statutory circumstances, including that the buyer (1) “intentionally provided false or misleading information of material importance on his or her credit application”; (2) concealed the motor vehicle from the creditor; (3) committed or threatened to commit acts of destruction or failed to take care of the vehicle in a reasonable manner; (4) committed, threatened to commit, or attempted to commit criminal acts of violence against the seller/holder or its agent; or (5) the buyer knowingly used the vehicle in connection with the commission of a criminal offense. (§ 2983.3(b)(1)-(5).) “Exercise of the right to reinstate the contract shall be limited to once in any 12–month period and twice during the term of the contract.” (§ 2983.3(c).) . . . Under this subsection, a seller cannot recover a deficiency unless the NOI specifically and timely notifies the buyer of the conditions precedent to loan reinstatement OR timely notifies the buyer that there is no right of reinstatement and provides a statement of reasons for this conclusion. Reading together sections 2983.2 and 2983.3, a seller/holder who wishes to preserve its rights to claim a deficiency must determine within a 60–day period after repossession whether a buyer is entitled to a reinstatement, and then notify the buyer of this decision. Given the Legislature’s manifest intent to set forth the exclusive process for creditors to obtain a deficiency balance after a vehicle repossession or surrender, there is no room for reading additional exceptions into the statutory scheme. The statutes cannot be reasonably interpreted to allow a creditor who failed to give timely notice of a statutory exception to the mandatory reinstatement right to later alter its position and retroactively deny reinstatement, regardless whether the retroactive denial is for affirmative or defensive purposes. Any other conclusion would require that we ignore the plain language of sections 2983.2(a)(2) and 2983.3(b). ¶ . . . Equally important for class certification purposes, even assuming the statutory exception could be asserted after the statutory time period had expired, Balboa did not proffer any facts showing that any such exception would apply to any of the other class members. Instead, it merely stated that individual issues would predominate because it should be pro-vided the right to “investigate” each class member to determine whether it could find any facts showing the applicability of any of the statutory exceptions. Without any foundational basis showing that such evidence could or would be discovered, this possibility does not raise a likelihood that individual issues would predominate over common issues in the litigation. (See Brinker, supra, 53 Cal.4th at p. 1025 [in deciding certification question court must examine the plaintiff’s theory of recovery and “assess the nature of the legal and factual disputes likely to be presented,” italics added].)