KIMALA JACKSON, AN INDIVIDUAL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT,
v.
SOUTHERN AUTO FINANCE COMPANY, A FLORIDA CORPORATION D/B/A "SAFCO.", APPELLEE
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The court held that a lender's insufficient notice of repossession sale under the UCC, even with subsequent oral communication, does not cure the defect, and an unaccepted settlement offer does not moot a class action.
Plaintiff's car was repossessed and sold. The lender provided notice of the sale that failed to comply with UCC requirements. The lender argued oral n…
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KLEIN, J.
Appellant’s car was repossessed and sold, and she filed this class action against the lender, alleging that it failed to comply with the notice requirements of the UCC. The trial court granted the lender’s motion for summary judgment, but we reverse because of the insufficiency of the notice. We also find a settlement offer for the full amount plaintiff sought did not make the class action moot.
The notice provided by the lender failed to include a number of requirements found in section 679.614(l)(a) and section 679.613(1), such as whether the sale was public or private, or where or when the sale would be held. The lender argues that if the notice was not in compliance with the UCC, plaintiff had received actual notice of the sale through conversations between her and the director of collections for the lender. The case relied on by the lender to support its argument that the oral notice would remedy any deficiencies in the written notice, Bondurant v. Beard Equipment Co., 345 So. 2d 806 (Fla. 1st DCA 1977), was decided before the legislature enacted the current statutes requiring written notice, and is no longer good law. The court accordingly erred in entering a summary judgment in favor of the lender. Nor do we agree with the lender’s argument that its unaccepted settlement offer for the full amount of plaintiffs claim, a practice which is known as “picking off’ a class representative, made this case moot. Neither Florida nor the federal courts sanction that practice. Allstate Indem. Co. v. De La Rosa, 800 So. 2d 245 (Fla. 3d DCA 2001); Weiss v. Regal Collections, 385 F. 3d 337 (3d Cir.2004). Reversed.
SHAHOOD, C.J. and DAMOORGIAN, J., concur.
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Cited By
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Kaner v. Robert R. Schiffman, D.C., P.C., 126 So. 3d 1134 (Fla. 4th DCA 2012)…after an evidentiary hearing. On remand, before entering another final judgment, the court shall also consider and rule on Kaner’s motion to certify the class, which he filed before the entry of the final judgment. See Jackson v. S. Auto Fin. Co., 988 So. 2d 721, 722 (Fla. 4th DCA 2008) (in a class action, holding that a defendant’s unaccepted settlement offer for the full amount of the plaintiffs claim, “a practice which is known as ‘picking off a class representative,” did not moot the case); see also Wei…
Authorities Cited
- Bondurant v. Beard Equip. Co., 345 So. 2d 806 (Fla. 1st DCA 1977)
- Allstate Indem. Co. v. Leandro DE LA Rosa, 800 So. 2d 245 (Fla. 3d DCA 2001)