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1998 540iA Suit, Second Part of Suit (archive)

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Posted by John Sain on July 05, 2000 at 22:21:04:

In Reply to: Lemon 540iA, Filed Suit 26 June 2000 posted by John Sain on July 04, 2000 at 22:21:26:

COUNT I
BREACH OF WRITTEN WARRANTY PURSUANT TO
THE MAGNUSON-MOSS WARRANTY ACT
MANUFACTURER

20. Plaintiffs re-allege and incorporate by reference as though fully set forth herein, all paragraphs of this Complaint set forth above.
21. Plaintiffs are lessees of a consumer product who received the 540i during the duration of a written warranty period applicable to the 540i and who is entitled by the terms of the written warranty to enforce against Manufacturer the obligations of said warranty.
22. Manufacturer is a "person" engaged in the business of making a consumer product directly available to Plaintiffs.
23. Lessor is an authorized dealership and agent of Manufacturer, designated to perform repairs on vehicles pursuant to Manufacturer's automobile warranties.
24. Plaintiffs' lease of the 540i was accompanied by written factory warranties covering any nonconformities or defects in material or workmanship, undertaking in writing to refund, repair, replace, or take other remedial action free of charge to Plaintiffs with respect to the 540i in the event that the 540i failed to meet the specifications set forth in the warranties.
25. Said warranties were the basis of the bargain of the contract between the Plaintiffs and Manufacturer for the sale or lease of the 540i to Plaintiffs.
26. Said lease of Plaintiffs' 540i was induced by, and Plaintiffs relied upon, these written warranties.
27. Plaintiffs have met all obligations and preconditions as provided in the written warranties.
28. As a direct and proximate result of Manufacturer's failure to comply with its express written warranties, Plaintiffs has suffered damages and, in accordance with 15 U.S.C.
2310(d)(1), Plaintiffs is entitled to bring suit for such damages and other legal and equitable relief, including attorneys' fees incurred in connection with this action.
WHEREFORE, Plaintiffs, JOHN R. SAIN, III and ELENA SAIN, pray for judgment against Manufacturer as follows:
a. Return of all monies paid or diminution in value of the 540i, and all incidental and consequential damages incurred, including, but not limited to, all finance charges incurred;
b. All reasonable attorneys' fees, witness fees, court costs and other fees incurred by Plaintiffs; and
c. Such other and further relief that this Court deems just and appropriate.

COUNT II
BREACH OF IMPLIED WARRANTY PURSUANT TO
THE MAGNUSON-MOSS WARRANTY ACT
MANUFACTURER

29. Plaintiffs re-allege and incorporate by reference as though fully set forth herein, all paragraphs of this Complaint set forth above.
30. The 540i leased by Plaintiffs was subject to an implied warranty of merchantability as defined in Ohio Rev. Code 2301(7), running from the Manufacturer to the Plaintiffs herein.
31. Manufacturer is a supplier of consumer goods as a "person" engaged in the business of making a consumer product directly available to Plaintiffs.
32. Manufacturer is prohibited from disclaiming or modifying any implied warranty when making a written warranty to the consumer.
33. Plaintiffs' 540i was impliedly warranted to be substantially free of defects and nonconformities in both material and workmanship, and thereby fit for the ordinary purpose for which the 540i was intended.
34. The above-described defects and nonconformities present in the 540i render the 540i unmerchantable, unsafe, and thereby not fit for the ordinary and essential purpose for which the 540i was intended, as represented by Manufacturer.
35. As a result of the breaches of implied warranty by Manufacturer, Plaintiffs are without the reasonable value of the 540i and Plaintiffs have suffered and continues to suffer various damages, including attorneys' fees incurred in connection with this action.
WHEREFORE, Plaintiffs, JOHN R. SAIN, III and ELENA SAIN, pray for judgment against Manufacturer as follows:
a. Return of all monies paid or diminution in value of the 540i, and all incidental and consequential damages incurred, including, but not limited to, all finance charges incurred;
b. All reasonable attorneys' fees, witness fees, court costs and other fees incurred by Plaintiffs; and
c. Such other and further relief that this Court deems just and appropriate.

COUNT III
OHIO MOTOR VEHICLES WITH
WARRANTY NONCONFORMITIES ACT
MANUFACTURER

36. Plaintiffs re-allege and incorporate by reference as though fully set forth herein, all paragraphs of this Complaint set forth above.
37. Pursuant to O.R.C. 1345.73(A), Plaintiffs have presented the 540i to Lessor and/or an authorized service dealer of Manufacturer on at least three (3) occasions for the same defect within the first twelve months or first eighteen thousand miles of ownership, and the nonconformity continues to exist.
38. Pursuant to O.R.C. 1345.72(B), Plaintiffs are entitled to a refund of the full lease price of the vehicle, including all collateral charges and finance charges, and/or a replacement vehicle, plus all attorney fees and costs.
WHEREFORE, Plaintiffs, JOHN R. SAIN, III and ELENA SAIN, pray for judgment against Manufacturer as follows:
a. Return of the 540i's lease price and all incidental and consequential damages incurred by Plaintiffs;
b. Return of all finance charges incurred by Plaintiffs for the 540i;
c. All reasonable attorneys' fees, witness fees, court costs and other fees incurred by Plaintiffs; and
d. Such other and further relief that this Court deems just and appropriate.

JURY DEMAND

Plaintiffs demands trial by jury on all issues in this action, except for any issues relating to the amount of attorneys' fees and litigation costs awarded should Plaintiffs prevail in this action.


Respectfully Submitted,


Ronna S. Lucas
Attorney for Plaintiffs

David B. Levin
Ohio Registration No. 0059340
Steven L. August
Ohio Registration No. 0059886
Ronna S. Lucas
Ohio Registration No. 0063304
Attorneys for Plaintiffs

Krohn & Moss, Ltd.
2101 Richmond Road
La Place Mall
Beachwood, Ohio 44122

Mailing Address:
120 W. Madison Street, 10th Floor
Chicago, Illinois 60602
(312) 578-9428
(888) 695-3666


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