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Cubler v. Trumark Financial Credit Union

Superior Court of Pennsylvania

December 20, 2013


Appeal from the Order entered on October 23, 2012 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 12-0401800.




In this class action contract dispute, Cody Cubler ("Cubler"), individually and on behalf of all others similarly situated, appeals from the Order that granted the Motion for judgment on the pleadings filed by TruMark Financial Credit Union ("TruMark"), and dismissed Cubler's Complaint with prejudice. We reverse and remand for further proceedings.

The trial court set forth the relevant facts underlying this appeal as follows:

[Cubler] commenced this consumer Class Action by filing his Complaint on April 16, 2012. On or about October 28, 2008, [Cubler] purchased a used 2006 Chevrolet Cobalt from Enterprise Car Sales. Purchase money financing was arranged through [TruMark]. [Cubler's] Complaint alleges that Cubler's father, George Cubler[, ] co-signed the loan. However, the Retail Installment Sale Contract states that George Cubler was the buyer of the vehicle, and [that Cubler] was the co-buyer. Per the terms of the financing arrangement, TruMark was the secured party, and the monthly payments were to be made to TruMark.
Sometime in the Summer of 2009, after [Cubler] failed to make the agreed-upon monthly payments, TruMark declared a default. On or around August 13, 2009, TruMark, the lender and secured party, repossessed the vehicle. TruMark sent George Cubler a Notice of Repossession on or about August 14, 2009; however, [Cubler's] Complaint alleges that TruMark failed to provide [Cubler] with notice required by [Article 9 of the Pennsylvania Uniform Commercial Code ("UCC"), 13 Pa.C.S.A. § 9601 et seq. (governing the rights and duties of a secured party following a debtor's default).[1] [Cubler] further claims that the [N]otice sent to George Cubler was defective because it did not state the date and location of the auction[, ] or whether the auction sale was to be public or private. The [N]otice also failed to advise the borrower of the right to an accounting and the charge to the borrower for such accounting. The [N]otice also failed to inform [Cubler] that he had the right to redeem the vehicle up until the time of sale. [Cubler] asserts that these same deficiencies existed in notices sent by TruMark to consumers across the Commonwealth of Pennsylvania, and these deficiencies form the basis of [Cubler's] class action.
Shortly after the [N]otice was sent to George Cubler, TruMark sold the vehicle at auction; however, a deficiency remained after the sale proceeds were applied to the balance of the loan. By letter dated September 18, 2009, TruMark sent a post-sale deficiency [N]otice to George Cubler[, ] stating that the car was sold for $4, 805, 00, resulting in a deficiency of $6, 969.40. [Cubler] further alleges that this post-sale deficiency notice was never provided to him[, in violation of 13 Pa.C.S.A. § 9616 (requiring a secured party to provide the debtor with an explanation of the claimed deficiency that remained after the sale of the collateral).]

Trial Court Opinion, 4/4/13, at 1-3 (footnote added).

Cubler filed his Complaint on April 16, 2012, approximately 2½ years after TruMark repossessed and sold his vehicle. In his Complaint, Cubler objected to TruMark's failure to provide him (and his fellow class members) proper notice pursuant to the provisions of Article 9 of the UCC, and sought to recover "statutory damages" under section 9625 of the UCC. See 13 Pa.C.S.A. § 9625 (titled "[r]emedies for secured party's failure to comply with division."). Section 9625 provides, in relevant part, as follows:

(b) Damages for noncompliance.-- Subject to subsections (c), (d) and (f), a person is liable for damages in the amount of any loss caused by a failure to comply with this division. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain … alternative financing.
(c) Persons entitled to recover damages; statutory damages in consumer-goods transaction.-- …:
(2) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this chapter may recover for that failure in any event an amount not less than the credit service charge plus 10% of the principal amount of the obligation or the time price differential plus 10% of the cash price.
(e) Statutory damages: noncompliance with specified provisions.-- In addition to any damages recoverable under subsection (b), the debtor, consumer obligor or person named as a debtor in a filed record, ...

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