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IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUISSTATE OF MISSOURIAMERICREDIT FINANCIAL)SERVICES, INC. D/B/A)GM FINANCIAL,))Plaintiff,) ) Cause No. 15SL-AC24506-01 vs. ) ) Division No. 42NICOLE M. BELL.)) Defendant.)ORDER Pursuant to the Supreme Court’s denial of the writ of prohibition without prejudice to seek relief below in light of State ex rel. General Credit Acceptance Company, L.L.C. v. The Honorable David L. Vincent III, 570S.W.3d 42 (Mo. 2019), Americredit Financial Services, Inc, d/b/a GM Financial (“GM Financial”) filed a motion to decertify the classes. Nicole Bell (“Bell”) opposed the motion, but consented to modification of the classes certified in regards to class members who filed bankruptcy and those who had deficiency judgments. The parties briefed and argued the main remaining issue of whether the nationwide class should remain certified and reargued several other matters. The court having reviewed the briefs and considered the arguments grants GM Financial’ motion in part and denies it in part. The court decertifies Class 2, the nationwide class. The court modifies the Class 1 definitions to exclude all persons whom GM Financial has obtained a deficiency judgment or who filed for bankruptcy after the date of their presale notice and whose bankruptcy proceeding ended in a discharge of GM Financial debt. The court also modifies the Class 1 definition to delete “voluntarily or involuntarily”.BackgroundThis is a class action about “form documents and uniform practices.” See November 30, 2018 Order p. 10 (“Certification Order”). The class claims are based on an interpretation of the form UCC notices regarding presale and post-sale notice of disposition of the collateral. Id. at 1, 10; “A central aspect of [Bell’s] class action is a determination of whether [GM Financial] violated any statutory provisions governing its form UCC notices.” Id.On May 17, 2016, GM Financial moved to dismiss or strike Bell’s “nationwide class allegations.” See October 17, 2016 Order p. 1. GM Financial argued the Court must dismiss the nationwide class allegations because: (1) the Court lacked personal jurisdiction over GM Financial for class members outside Missouri; and (2) “variations in state law…destroy commonality and predominance.” Id. at 1, 4. After conducting discovery, Bell moved for class certification. GM Financial opposed certification because it argued: (1) the classes were overbroad by including class members with deficiency judgments or bankruptcies; (2) this Court lacked personal jurisdiction over GM Financial for class members outside Missouri; (3) variations in state law preclude the Nationwide Class; and (4) numerousity, commonality, typicality, adequacy, predominance, and superiority weren’t satisfied. The parties submitted over one hundred pages of briefing on the motion, thousands of pages of exhibits, and had a hearing on class certification. On November 30, 2018, this Court granted Bell’s Amended Motion for Class Certification and certified these classes:Class 1 (“Missouri Class”):All persons who obtained a Missouri Certificate of Title for a motor vehicle identifying GM Financial as the lienholder, or who are named as borrowers or buyers with a Missouri address on a loan or financing agreement with GM Financial, assigned to GM Financial or owned by GM Financial whose motor vehicle or other collateral was repossessed after January 30, 2010 and:who GM Financial mailed no presale notice after the collateral was repossessed, voluntarily or involuntarily;who GM Financial mailed a presale notice that stated anywhere in the notice one or all these phrases: “may reduce”, “may reduce or increase the amount you owe”, “Repossession Expenses”, or “private sale after”;who GM Financial mailed no post-sale notice after disposing the collateral or receiving insurance proceeds for the same; orwho GM Financial mailed a post-sale notice after disposing the collateral or receiving insurance proceeds for the same.Class 2 (“Nationwide Class”):All persons within the applicable statute of limitations:who GM Financial mailed no presale notice after the collateral was repossessed, voluntarily or involuntarily;who GM Financial mailed a presale notice that stated anywhere in the notice one or all these phrases: “may reduce”, “may reduce or increase the amount you owe”, “Repossession Expenses”, or “private sale after”;who GM Financial mailed no post-sale notice after disposing the collateral or receiving insurance proceeds for the same; orwho GM Financial mailed a post-sale notice after disposing the collateral or receiving insurance proceeds for the same.GM Financial sought a writ of prohibition to prevent the court from certifying any counterclaim class or in the alternative from certifying any nationwide counterclaim class. In denying the writ without prejudice, the Supreme Court granted the parties the right to seek relief in this court in light of the Supreme Court’s ruling in State ex rel. General Credit Acceptance Company, L.L.C. v. The Honorable David L. Vincent III, 570S.W.3d 42 (Mo. 2019) (“GCAC”). In GCAC the Court took issue with a class that not typical and was overly broad.OverbreadthWhen class certification is appropriate, Rule 52.08 presupposes a properly defined class that is ascertainable and not overbroad.?State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d at 861-62. A properly defined class “is necessary to realize both the protections and benefits for which the class action device was created.”?Id.?at 861. A class definition encompassing “more than a relatively small number of uninjured putative members is overly broad and improper.”?Id. GM Financial asserts and Bell agrees, that the court must exclude judgment debtors and bankrupts from the class definition. GM Financial also asserts that the class is overbroad because as many as 15% of the Missouri class members may have arbitration provisions in their retail sales contracts. A GM Financial executive indicated in an affidavit that in a database the notation “ARB’ was contained on approximately 15% of the entries. As Bell notes in briefing, the court is unable to ascertain, what, if any, effect this would have on the class. It is not even close to the 87% of claims possible excluded in GCAC and thus in this case the issue of possible arbitration claims in some contracts is far too speculative and unproven to decertify a statewide class. The court finds that the statewide class is not overbroad.Nationwide ClassGM Financial argues that the court lacks personal jurisdiction over GM Financial with respect to a nationwide class. Bell and GM Financial concede that there is little case law on point regarding the court’s jurisdiction over a nationwide class that arose from a relatively simple debt collection case. Despite GM Financial’ surprise in finding that its prey in the underlying debt collection case has now morphed into a possible tiger held tightly by the tail, it is clear to the court that GM Financial’ is correct and the court does not have personal jurisdiction over a nationwide class in this case. As the learned Judge Michael Wolff, concurring in State ex rel. American Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483, 493 (Mo. 2003), noted.“Our earliest notions of personal jurisdiction held that a state could not exercise jurisdiction beyond its borders to compel those outside the state to respond to process in the state.?See?Pennoyer v. Neff,?95 U.S. 714, 24 L.Ed. 565 (1877). The notion in?Pennoyer?was that exercise by a state beyond its borders was an affront to the sovereignty of the state whose resident or citizen was being summoned. These jurisdictional concepts were imposed with respect to absent?defendants?being haled before a domestic court. The strict territorial limits of?Pennoyer?have given way to a due process analysis based in part on a party's contacts with the forum state.?International Shoe Co. v. Washington,?326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).Although the jurisdictional limits have become flexible, they still are limits, particularly where a party—including an unnamed class member—has no contact with the forum state. In a class action, as the Vermont opinion suggests, members of the plaintiffs' purported class are in effect being summoned into the forum state in the sense that their interests are being affected and a judgment that will bind them is to be entered.For a state court to apply its law to the claims of out-of-state parties in a class action suit, the Supreme Court has held that a state must have a “significant contact or significant aggregation of contacts” to the claims asserted by each member of the class.?Phillips Petroleum Co. v. Shutts et al.,?472 U.S. 797, 821–22, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985)”. Id.Significant contact was found in State ex rel. McKeage v. Cordonnier, 357 S.W.3d 597 (Mo. 2012), where the defendant had inserted in all of the nationwide contracts a clause that required Missouri law to be used to in any dispute regarding the contract. The trial court’s decision not to certify a nationwide class was reversed due to predominance of Missouri law amongst all nationwide class members.Here Bell can point to no significant contact or aggregation of contracts that the nationwide class members have with Missouri. There only common link is the plaintiff GM Financial and for those nationwide class members outside of Missouri there is no connection to Missouri. Since there is no contact with Missouri there is no jurisdiction in Missouri over this nationwide class. Even if Bell could establish significant contacts between Missouri and a nationwide class, it is not likely that a nationwide class would meet the requirements of Rule 52.08.“Certification of a class action requires: (1) the class be so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class exist; (3) the claims of the representative parties are typical of the claims of the class; and (4) the representative parties will protect fairly and adequately the interests of the class.” Rule 52.08 (a), State ex rel. McKeage v. Cordonnier, 357 S.W.3d 597, 599 (Mo. 2012). Here the court has no concerns regarding the statewide class’ ability to meet the prerequisites of numerousity, commonality and typicality (after Bell’s proposed amendments to the class) requirements. GCAC raised an issue with the class representative’s typicality for representing a class whose collateral was seized involuntarily when the GCAC plaintiff’s collateral was surrendered voluntarily. Here Bell’s collateral was seized involuntarily. The court cannot determine for purposes of class certification, in a case regarding allegedly deficient notices, why there is a distinction between involuntarily or voluntarily. Class membership requires repossession of collateral, whether voluntary or involuntary. The class definition will be amended to delete “voluntarily or involuntarily’ in order to resolve what would appear to be a distinction without a difference. Bell’s learned counsel is more than capable of fairly and adequately representing the interests of the class. “If the Rule 52.08(a) prerequisites are met, a class action may be maintained only if the plaintiff shows the class satisfies one of the three additional standards set forth in Rule 52.08(b).” GCAC, 570 S.W.3d 42, 47 (Mo. 2019). “…..certification is proper if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Id. Judge Draper found that Bell met the predominance and superiority requirements of Rule 52.08(b).The ‘predominance’ requirement does not mean that all issues in the case must be common to all class members. However GM Financial correctly notes that laws of all fifty states could be at issue in a nationwide class. This is simply too much and even if the court were to find it had jurisdiction to hear this nationwide class action case, it would not do so on ‘predominance’ grounds. See State ex rel. American Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483, 493 (Mo. 2003). A nationwide class with numerous state law differences would not be capable of effective management in this court. A statewide class action case, with issues confined to Missouri law can be effectively managed in this court.For a statewide class case Rule 52.08 will provide a superior economical method to resolve the numerous disputes between state class members and GM Financial. GM Financial’s procedural will also be preserved in a case that focuses solely on Missouri issues.IT IS THEREFORE ORDERED THATGM Financial’ Motion to Decertify is granted in part and denied in part.Class 2 is decertified.Class 1 is amended to exclude all persons whom GM Financial has obtained a deficiency judgment or who filed for bankruptcy after the date of their presale notice and whose bankruptcy proceeding ended in a discharge of GM Financial debt. The court also modifies the Class 1 definition to delete “voluntarily or involuntarily”.All other parts of the The Honorable Judy Draper’s order, dated November 30, 2018, are to remain in full force and effect. SO ORDERED:__________________________________JUDGE Robert M. HeggieDivision 42August 12, 2019 ................
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