This case was last updated from Fresno County Superior Courts on 12/20/2018 at 09:40:41 (UTC).

Andrea Martinez vs. Finance and Thrift Company

Case Summary

On 12/20/2012 Andrea Martinez filed a Contract - Business lawsuit against Finance and Thrift Company. This case was filed in Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Black, Donald and Smith, Bruce. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3998

  • Filing Date:

    12/20/2012

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Business

  • Court:

    Fresno County Superior Courts

  • Courthouse:

    Bf Sisk Courthouse

  • County, State:

    Fresno, California

Judge Details

Judges

Black, Donald

Smith, Bruce

 

Party Details

Plaintiffs

Martinez, Andrea

Barrera, Esequiel

Branscumb, Earl G.

Branscumb, Elizabeth

Weed, Karen K.

Zepeda, Javier A.

Defendant

Finance and Thrift Company, a California Corporation

Attorney/Law Firm Details

Plaintiff Attorney

Krieg, William M.

Kemnitzer, Barron & Krieg 2014 Tulare Street, Ste 700

Fresno, CA 93721

Defendant Attorney

Kemp, Erik

 

Court Documents

Judgment

Judgment After Court Trial; Judicial Officer: Black, Donald; Judgment Type: Judgment After Court Trial; Party Names: Martinez, Andrea; Barrera, Esequiel; Branscumb, Earl G.; Branscumb, Elizabeth; Weed, Karen K.; Zepeda, Javier A.; Finance and Thrift Company, a California Corporation; Black, Donald; Judgment - Monetary Award; Awarded To:; Martinez, Andrea; Barrera, Esequiel; Branscumb, Earl G.; Branscumb, Elizabeth; Weed, Karen K.; Zepeda, Javier A.; No Judgment Awarded; Awarded Against:; Finance and Thrift Company, a California Corporation

Minute Order Attachment (Tentative Rulings Only)

Civil Document

Memorandum of Costs filed

Civil Document; Comment: Total Costs: $ 1,374.90

Minute Order Attachment

Minute Order Attachment; Comment: Continuing motions from 6/14/16 to 7/7/16

Order filed

Order filed; Judicial Officer: Black, Donald; Comment: Amended Order for Preliminary Approval of Settlement, Setting Final Approval Hearing

Supplement to

Supplement to; Comment: Declaration of William M. Krieg in Support of Motion for Preliminary Approval of Class Action Settlement and Filing of First Amended Complaint.

Minute Order Attachment

Minute Order Attachment

Notice Filed

Notice Filed; Comment: Joinder in motion for preliminary approval

Minute Order Attachment

Minute Order Attachment

Declaration Filed

Declaration Filed; Comment: of Steven A. Silver re: putative class data

Declaration Filed

Declaration Filed; Comment: of Joseph F. Mahan in support of plaintiffs' motion for final approval of settlement

Declaration Filed

Declaration Filed; Comment: of William M. Krieg in support of motion for attorney's fees

Amended Document Filed

Amended Document Filed; Comment: First Amended Complaint for Unfair Business Practices.

Declaration Filed

Declaration Filed; Comment: re: putative class data

Declaration Filed

Declaration Filed; Comment: of Andrea Martinez In Support of Motion for Preliminary Approval of Class Action Settlement

Declaration Filed

Declaration Filed; Comment: In Support of Motion for Preliminary Approval of Class Action Settlement

Memorandum of Points and Authorities

Memorandum of Points and Authorities; Comment: In Support of Motion for Preliminary Approval of Class Action Settlement

Minute Order Attachment

Minute Order Attachment

17 More Documents Available

 

Docket Entries

  • 07/27/2016
  • View Court Documents
  • Disposition: Judgment- Judgment After Court Trial; Judicial Officer: Black, Donald; Judgment Type: Judgment After Court Trial; Party Names: Martinez, Andrea; Barrera, Esequiel; Branscumb, Earl G.; Branscumb, Elizabeth; Weed, Karen K.; Zepeda, Javier A.; Finance and Thrift Company, a California Corporation; Judgment - Monetary Award; Awarded To:; Martinez, Andrea; Barrera, Esequiel; Branscumb, Earl G.; Branscumb, Elizabeth; Weed, Karen K.; Zepeda, Javier A.; No Judgment Awarded; Awarded Against:; Finance and Thrift Company, a California Corporation

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  • 03/06/2017
  • View Court Documents
  • Declaration Filed- Martinez - FTC Dec re Comp w Settlement.pdf; Comment: Declaration of Steven Silver re Compliance with Settlement Agreement

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  • 08/04/2016
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  • Notice of Entry of Judgment- Notice of Entry of Judgment

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  • 07/07/2016
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  • Minute Order Attachment (Tentative Rulings Only)- Civil Document

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  • 07/07/2016
  • Motion - Attorney Fees- Judicial Officer: Black, Donald; Hearing Time: 3:28 PM; Result: Heard

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  • 07/07/2016
  • Motion - Final Approval Class Settlement- Judicial Officer: Black, Donald; Hearing Time: 3:27 PM; Result: Heard

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  • 06/09/2016
  • View Court Documents
  • Declaration Filed- Declaration Filed; Comment: of Steven A. Silver re: putative class data

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  • 06/09/2016
  • View Court Documents
  • Declaration Filed- Declaration Filed; Comment: of Joseph F. Mahan in support of plaintiffs' motion for final approval of settlement

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  • 06/09/2016
  • View Court Documents
  • Declaration Filed- Declaration Filed; Comment: of William M. Krieg in support of motion for class action settlement

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  • 06/09/2016
  • View Court Documents
  • Memorandum of Points and Authorities- Memorandum of Points and Authorities; Comment: in support of motion for class action settlement

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71 More Docket Entries
  • 03/20/2013
  • Financial info for Finance and Thrift Company, a California Corporation: Transaction Assessment $435.00

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  • 03/20/2013
  • Financial: Finance and Thrift Company, a California Corporation; Total Financial Assessment $435.00; Total Payments and Credits $435.00

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  • 06/09/2016
  • Financial info for Martinez, Andrea: Counter Payment Receipt # CIVIL-2016-00020860 Krieg, William M. $60.00

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  • 06/09/2016
  • Financial info for Martinez, Andrea: Counter Payment Receipt # CIVIL-2016-00020858 Krieg, William M. $60.00

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  • 06/09/2016
  • Financial info for Martinez, Andrea: Transaction Assessment $120.00

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  • 11/18/2015
  • Financial info for Martinez, Andrea: Counter Payment Receipt # CIVIL-2015-00030783 Krieg, William M. $60.00

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  • 11/18/2015
  • Financial info for Martinez, Andrea: Transaction Assessment $60.00

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  • 12/20/2012
  • Financial info for Martinez, Andrea: Counter Payment Receipt # 172889 Martinez, Andrea $435.00

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  • 12/20/2012
  • Financial info for Martinez, Andrea: Transaction Assessment $435.00

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  • 12/20/2012
  • Financial: Martinez, Andrea; Total Financial Assessment $615.00; Total Payments and Credits $615.00

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Complaint Information

Plaintiffs herein. I have personal knowledge of the following matters and, if called as a witness, could competently testify thereto.

CHANGES MADE PER COURT’S JANUARY 19, 2016 ORDER

2. On about January 19, 2016, this Court issued its Tentative Ruling granting plaintiffs’ Motion for Preliminary Approval of Class Action Settlement, and, instructing plaintiffs to file a first amended complaint deleting references to the proposed “GPS” class. Pursuant to the Court’s Ruling, changes were made to the Complaint as shown in the “redline” or redacted version of the Complaint, attached as Exhibit B, for reference only. The final version o the First Amended Complaint, attached as Exhibit A.

3. The Motion for Preliminary Approval did not include the “GPS Class” referred to in the complaint because defendant has confirmed that putative members of the GPS Class were not charged for installation of that device, as initially alleged. (See, defendant’s Declaration Re Putative Class Data (Gregg) in support of motion for preliminary approval) As a practical matter, because there was no money paid by the alleged GPS Class members, there 1s no separate relief or restitution to which they would be entitled. This change does not effect in any way the relief to which Settlement Class members (NOI Class) are entitled.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 27th day of January, 2016, at Fresno,

N 4 N LA

3. Plaintiffs, KAREN K. WEED and JAVIER A. ZEPEDA (collectively “WEED”), are and at all relevant times herein were residents of the County of Fresno, and all acts alleged herein as to WEED occurred in Fresno Counfy..

4. Defendant, FINANCE AND THRIFT COMPANY, and its associates, affiliates, and subsidiaries (collectively, "F&T"), is and at all relevant times herein was a corporation authorized to do business and doing business in the State of California, including the County of Fresno.

5. Plaintiffs do not know the true names and capacities, whether corporate, partnership, associate, individual, or otherwise, of Defendants sued herein as DOES 1 through 10, inclusive. Plaintiffs are informed and believe, and on that basis allege, that Defendants DOES 1 through 10, inclusive, are in some manner responsible for the acts, occurrences, and transactions set forth herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this complaint to set forth the true names and capacities of these fictitiously- named Defendants, when ascertained.

6. Plaintiffs are informed and believe, and on that basis allege, that at all timés mentioned herein each Defendant, whether actually or fictitiously named herein, was the principal, agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal or within the course and scope of such employment or agency, took some part in the acts and omissions hereinafter set forth, by reason of which each Defendant is liable to Plaintiffs for the relief prayed

for herein.

ACTS OF DEFENDANTS

A. THE BARRERA’s VEHICLE

7. Onabout October 5,2009, BARRERA purchased a used 2003 Chevrolet Trailblazer, from a used car dealer which purchase was financed by F&T pursuant to a conditional sales contract or dealer arranged financing which was subject to and governed by the Rees-Levering Automobile Sales Finance Act, Civ. Code § 2981, et seq. (“ASFA”). F&T was regularly engaged 1n the business of financing vehicle purchases which financing was subject to the ASFA.

8. Inabout March 2012, F& T repossessed BARRERA s vehicle as aresult of an alleged

default in performance on the vehicle loan. In about March 2012, F&T mailed a written “Notice of

First Amended Complaint for Unfair Business Practices

First Amended Complaint for Unfair Business Practices Intention to Dispose of Motor Vehicle” (“NOTICE”) to BARRERA, which stated that the vehicle had been repossessed and would be sold unless BARRERA paid money and complied with other conditionsfl to redeem the vehicle or to reinstate the contract. However, F&T’s NOTICE failed to comply with the requirementsseveral of the disclosures and conditions mandated by Civil Code §§2983.2.

Intention to Dispose of Motor Vehicle” (“NOTICE”) to BARRERA, which stated that the vehicle had been repossessed and would be sold unless BARRERA paid money and complied with other conditionsfl to redeem the vehicle or to reinstate the contract. However, F&T’s NOTICE failed to comply with the requirementsseveral of the disclosures and conditions mandated by Civil Code §§2983.2.

9. F&T sold or disposed of BARRERA'’s vehicle, and assessed a deficiency balance against them. F&T then filed a lawsuit against BARRERA, falsely representing and alleging that BARRERA owed a deficiency balance and when, in fact, they did not owe a deficiency because F&T’s NOTICE was defective and failed to comply with ASFA.

B. THE BRANSCUMB’S VEHICLE

10. On about September 13, 2010, BRANSCUMB purchased a used 2000 Ford Expedition from a used car dealer which purchase was financed by F&T pursuant to a conditional sales contract or dealer arranged financing which was subject to and governed by the ASFA.

11. In about May 2012, F&T reposéessed BRANSCUMB?’s vehicle as a result of an alleged default in performance on the vehicle loan. In about May 2012, F&T mailed a written NOTICE to BRANSCUMB which stated that the vehicle had been repossessed and would be sold unless BRANSCUMB paid money and complied with other conditions to redeem the vehicle or to reinstate the contract. F&T’s NOTICE failed to comply with the requirements of the ASFA and several of the disclosures and conditions mandated by Civil Code §§2983.2.

12. F&T sold BRANSCUMB’s vehicle, and assessed a deficiency balance against them. F&T then filed a lawsuit against BRANSCUMB, falsely representing and alleging that BRANSCUMB owed a deficiency balance and when, in fact, they did not owe a deficiency balance because F&T’s NOTICE was defective and failed to comply with ASFA.

C. THE WEED’s VEHICLE

13. On about December 06, 2010, WEED purchased a used 2004 Nissan Xterra from a used car dealer which purchase was financed by F&T pursuant to a conditional sales contract or dealer arranged financing which was subject to and governed by the ASFA.

14. In-about August 2011, WEED voluntarily swrendered the vehicle to F&T at its

First Amended Complaint for Unfair Business Practices

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Fresno, CA office. F&T thereafter failed to provide WEED with aNOTICE as required by, and that complied with ASFA and the requirements of Civil Code §§2983.2.

15. F&T sold WEED’s vehicle, and assessed a deficiency balance against them. F&T then filed a lawsuit against WEED, falsely representing and alleging that WEED owed a deficiency balance and when, in fact, they did not owe a deficiency balance because F&T failed to comply with the NOTICE provisions of ASFA. .

D. FINANCE AND THRIFT’S “NOTICES”

16. ASFA requires alender or holder of a conditional sales contract, such as F&T, to give a NOTICE before it sells or otherwise disposes 6f a repossessed or surrendered vehicle. Civ. Code § 2983.2. If the lender fails to give the proper NOTICE, or otherwise imposes unauthorized conditions on reinstatement of the loan or redemption of the vehicle, the lender or holder forfeits its right to any "deficiency" (money due from the debtor after the sale or disposal of the repossessed or surrendered vehicle). In other words, F&T is legally prohibited from asserting or collecting any unpaid portion of its alleged debt owing after repossession of a debtors’ vehicle if it failed to give a legally compliant NOTICE.

17. Following the repossession or surrender of each of Plaintiffs’ vehicle herein, F&T failed to provide a statutory NOTICE that complied with the requirements of ASFA and the Cal. Commercial Code. Because the NOTICE did not comply with the notice requirements, F&T lost its right to any deficiency from Plaintiffs and all others similarly situated. Nonetheless, F&T asserts that Plaintiffs owe a deficiency, and it has attempted to collect and/or collected a portion of the claimed deficiency from Plaintiffs and others similarly situated.

18. Plaintiffs are informed and believe that the defective and improper NOTICE used by F&T 1is a standard form NOTICE sent by F&T as a practice and procedure common to Plaintiffs and all persons whose vehicles were repossessed or surrendered. |

19. Plaintiffs are informed and believe that F&T regularly demands, attempts to collect and collects deficiencies from debtors in violation of ASFA, which mandates that if a creditor, such as F&T, fails to comply with ASFA’s NOTICE provisions, then no deficiency is owed by the debtor, and further prohibits F&T from attempting to collect any deficiency by legal action, judgment or

First Amended Complaint for Unfair Business Practices

First Amended Complaint for Unfair Business Practices o0 ~ N W BN L)

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otherwise.

20. Plaintiffs are informed and believe that F&T has unlawfully attempted to collect deficiencies dgainst debtors by filing lawsuits and obtaining unlawful judgments as a regular and uniform business practice by submitting false and/or misleading affidavits in court that represent that F&T has complied with ASFA’s requirements, when in fact it has not, or by failing to submit such an affidavit, as required by law. Plaintiffs therefore seek an order and/or declaration setting aside or declaring that such judgments are unenforceable and void as unlawful and fraudulently obtained.

21. Plaintiffs are informed and believe that F&T and/or its agents, following the repossession and sale of debtors’ vehicles, sends payment demands to debtors by negligently and/or intentionally misrepresenting that debtors are liable for deficiency balances remaining after disposition of the vehicles, when in fact, F&T had actual and constructive knowledge that class members are not liable for said deficiencies or any part of them as a result of its failure to comply with the NOTICE provisions of the ASFA.

22. Plaintiffs are informed and believe that F&T and/or its agents regularly report or communicate to consumer credit reporting organizations that purported deficiencies owed by buyers such as Plaintiffs, when in fact, Plaintiffs and other similarly-situated persons are not liable for deficiencies as a matter of law for the reasons stated above. | CLASS ALLEGATIONS- the “NOTICE” Class

23. Plaintiffs bring this class action pursuant to California Code of Civil Procedure § 382.

24. The “NOTICE” Class that Plaintiffs seek to represent is defined as follows: all persons (1) to whom Finance and Thrift (“F&T”) sent post-repossession NOTICES to California addresses beginning four years prior to the filing of this action, (ii) whose vehicles were sold or otherwise disposed of after repossession or voluntary surrender, and (iii) who F&T has asserted are

liable to it for a deficiency balance.

25. The above-described class should be certified for class action treatment because: a. the class 1s so numerous that joinder of all members would be impracticable; b. the factual questions are common to the class; C. the legal issues are common to the class;

First Amended Complaint for Unfair Business Practices

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d. Plaintiffs’ claims are typical of the claims of the members of the class;

e. Plaintiffs will fairly and adequately represent and protect the interests of the class by vigorously litigating this suit through attorneys who are skilled and experienced in class actions and unlawful business practice litigation; and

f. questions of law and fact common to all members of the class predominate over any questions affecting only individual members, and a class action is superior to any other available method for the fair and efficient resolution of this controversy.

26. Plaintiffs are unable to state the precise number of potential members of the proposed class because that information is in the sole possession of F&T. Plaintiffs are informed and believe that the proposed class numbers at least in the hundreds and is so numerous that joinder of all members would be impracticable. The exact size of the proposed class, and the identity of the members thereof, will be readily ascertainable from the business records of F&T.

27. There is a community of interest among the members of the proposed class in that there are questions of law and fact common to the proposed class that predominate over questions affecting only individual members. These questions include, inter alia, whether F&T°s NOTICE(S) complied with the requirements of Civil Code sections 2983.2, 2983.3 and 2983.8 and applicable provisions of the Cal. Commercial Code; whether F&T is owed deficiency balances from members of the proposed class; whether F&T had a legal right to collect or attempt to collect any alleged deficiency; whether F&T negligently and/or intentionally misrepresented to borrov_vers that they were liable for deficiency balances when there was no obligation to pay such amounts; whether F&T falsely reported deficiencies as valid debts to credit reporting organizations; whether F&T has, unlawtully or through false and misleading representations to the courts of this State, obtained judgments in violation of Civil Code §§ 2983.2, 2983.3 and 2983.8; and, whether F&T’s conduct 1s an unfair, or fraudulent, or unlawful business practice as defined by the Unfair Competition Law (“UCL”), Bus. and Profs. Code § 17200, et seq. Proof of a common set of facts will establish the liability of F&T and the right of each member of the class to relief.

28. Class members who have made payments on F&T’s allegedly invalid deficiency claims are entitled to recover tfie money they paid to F&T, plus interest and profits earned by F&T

First Amended Complaint for Unfair Business Practices

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on said sums.

29. Class members who have not made payments on these invalid deficiency claims are entitled to a declaration that they do not owe F&T any money on said claims and are entitled to an injunction prohibiting Defendant and its agents and successors from taking any steps to collect on such claims, as well as an order eliminating or expunging any record of such debt being owed.

30. Class members who have judgments entered against them in any judicial proceeding. to collect a deficiency are entitled to have those judgments set aside and nullified, and to a determination that any amounts that have been collected from them be returned, with interest and profits thereon, and that nothing more is owed on the judgments, and that all collection attempts cease.

31. Class members who have been subject to efforts by F&T or its agents or successors to collect the invalid debts or who have had negative information on the debts reported to credit reporting agencies are entitled to compensation for damage to their credit and/or other damages.

FIRST CAUSE OF ACTION

(Class Action for Violation of the Unfair Competition Law (“UCL”), Bus. and Profs. Code § 17200, et seq., for Violation of the Rees-Levering Automobile Sales Finance Act, Civil Code § 2981 et seq. (“ASFA”)— as to NOTICE Class only)

32. Plaintiffs incorporate herein Paragraphs 1 through 31, inclusive.

33. Theloans obtained by Plaintiffs from F&T or others to purchase their vehicles were subject to the provisions of the Rees-Levering Automobile Sales Finance Act, Civil Code § 2981 et seq. (“ASFA”).

34. Following the repossession or surrender of each Plaintiffs vehicle, F& T sent Plaintiffs a NOTICE that was invalid and violated ASFA, Civ. Code §§ 2983.2, 2983.3 and 2983.8, and applicable provisions of the Cal. Commércial Code in that the NOTICE did not contain all the information required by Civil Code §2983.2, and which imposed conditions to reinstatement and redemption which were illegal, and which violated the ASFA,

35. Plaintiffs have suffered injury in fact and lost money and property as a result of

defendant’s violations, and bring this cause of action pursuant to Bus. & Profs. Code §§ 17200, et

First Amended Complaint for Unfair Business Practices

First Amended Complaint for Unfair Business Practices O &0 N O D P~ Ww

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seq. (“UCL”) on behalf of themselves individually, and on behalf of all similarly situated persons who are victims of defendants’ unlawful, unfair and fraudulent business practices.

36. Plaintiffs are informed and believe that beginning at least four years before the date of this action, F&T has been using in California in connection with its repossession and disposal of vehicles pursuant to the ASFA, one or more forms. of NOTICE that do not comply with the requirements of ASFA and the Commercial Code.

37. BecauseF&T"s NOTICE did not comply with ASFA and the Commercial Code, F&T has forfeited its right to any deficiency against the debtors and the class.

38. Notwithstanding that it had no legal right to deficiencies, F&T has asserted such claims and has collected or attempted to collect deficiencies from Plaintiffs and the putative class based on the defective NOTICE.

390. The above acts and practices violate the UCL in that they are unlawful, unfair, and fraudulent, and present a continuing threat to members of the public in that F&T will continue to engage in the above deceptive acts and practices unless enjoined from doing so by the court.

40. As a direct result of the above-mentioned acts, F&T received and continues to hold ill-gotten gains in the form of money obtained as a result of F&T’s collection of invalid deficiency claims, and profits derived from that money and from the use of proceeds from deficiency accounts or judgments which assert or state that deficiency claims are owed by members of the public who are the victims of the deceptive practices, together with interes;c in the ill-gotten gains.

41. Plaintiffs seek relief against F&T and its associates, affiliates, and subsidiaries for all persons who were sent invalid NOTICES and from whom F&T claims a deficiency is owed, beginning fQur years before the filing of this action. The relief sought includes injunctive relief, a declaration of the rights of the parties, restitution, and disgorgement of ill—gofien gains and profits, and and such other relief as the Court deems proper.

42. Plaintiffs are also entitled to recover their costs, including attorneys fees.

WHEREFORE, Plaintiffs, for themselves individually and for the class alleged herein, pray for judgment as follows:

1. An order certifying this action as a class action;

First Amended Complaint for Unfair Business Practices