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540ia Lemon Law Suit, Intro and Count I (archive)

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Posted by John Sain on July 09, 2000 at 18:35:52:

IN THE COURT OF COMMON PLEAS OF PORTAGE COUNTY, OHIO

JOHN R. SAIN, III and )
ELENA SAIN )
)
Plaintiff, )
)
vs. ) No.
)
BMW OF NORTH AMERICA, INC. ) JURY DEMAND ENDORSED HEREON
c/o Registered Agent )
Address )
City, State Postal Code )
) Defendant. )

COMPLAINT

NOW COMES the Plaintiffs, JOHN R. SAIN, III and ELENA SAIN, by and through their attorneys, KROHN & MOSS, LTD., and for their complaint against Defendants, BMW OF NORTH AMERICA, INC. and CAIN TOYOTA-BMW, INC., allege and affirmatively statesas follows:
PARTIES
1. Plaintiffs, JOHN R. SAIN, III and ELENA SAIN ("Plaintiffs"), are individual who was at all times relevant hereto resided in the State of Ohio.
2. Defendant, BMW OF NORTH AMERICA, INC. ("Manufacturer"), is a foreign corporation authorized to do business in the State of Ohio, and is engaged in the manufacture, sale, and distribution of motor vehicles and related equipment and services. Manufacturer is also in the business of marketing, supplying and selling written warranties to the public at large through a system of authorized dealerships, including CAIN TOYOTA-BMW, INC. ("Lessor"). Manufacturer does business in all counties of the State of Ohio including Portage County.
BACKGROUND
3. On or about June 28, 1997, Plaintiffs leased from Lessor a 1998 BMW 540i ("540i"), manufactured and/or distributed by Manufacturer, Vehicle Identification Number WBADE6328WBW58565, as reflected in the documents attached hereto as Exhibit A.
4. The price of the 540i, including certain collateral charges, such as registration charges, document fees, sales tax, and finance charges, totaled more than $10,000.00.
5. Plaintiffs aver that as a result of ineffective repair attempts made by Manufacturer and/or its agent(s), the 540i cannot be utilized for personal, family and household use as was intended by Plaintiffs at the time of its acquisition.
6. In consideration for the lease of the 540i, Manufacturer issued and supplied to Plaintiffs several written warranties, including a four (4) year or fifty thousand (50,000) mile "bumper-to-bumper" warranty.
7. On or about November 1, 1997, Plaintiffs took possession of the 540i and
shortly thereafter experienced the various defects listed below which substantially impair the use, value and/or safety of the 540i.
8. The nonconformities described below violate the express written warranties issued to Plaintiffs by Manufacturer.
9 . Plaintiffs have delivered the 540i to Manufacturer's authorized servicing dealerships on numerous occasions.
10. Plaintiffs have brought the 540i to Lessor and/or an authorized service dealer of Manufacturer for attempted repairs to various defects and nonconformities, including but not limited to:
a. Defective side mirror;
b. Defective windshield washer;
c. Defective electrical system;
d. Defective sunroof;
e. Defective brakes as evidenced by a pulsation upon application;
f. Defective engine as evidenced by the intermittent illumination of the check engine light, the vehicle shaking and bucking at a cold start, and the vehicle dying down;
g. Defective trunk;
h. Defective exhaust system;
i. Defective fuel pump;
j. Various cosmetic defects as evidenced by an insecure floor mat, loose carpet, a broken ashtray button, and peeling panel; and
k. Defective tank.

11. Plaintiffs have provided Manufacturer sufficient opportunity to repair and/or replace the 540i pursuant to its written warranties.
12. After a reasonable number of attempts to cure the defects in Plaintiffs' 540i, the Manufacturer and its authorized servicing dealerships have been unable and/or have failed to repair the nonconformities or replace the 540i, as provided in the Manufacturer's written warranties.
13. Plaintiffs have justifiably lost confidence in the 540i's safety and reliability, and said nonconformities have substantially impaired the use, value and/or safety of the 540i to Plaintiffs.
14. Said nonconformities could not reasonably have been discovered by Plaintiffs prior to Plaintiffs' acceptance of the 540i.
15. As a result of these defects, Plaintiffs revoked acceptance of the 540i in writing on May 2, 2000. A copy of the revocation of acceptance letter is attached and labeled as Plaintiffs' Exhibit B.
16. At the time of revocation, the 540i was in substantially the same condition as at delivery except for damage caused by its own nonconformities and ordinary wear and tear.
17. Manufacturer and/or Lessor have refused Plaintiffs' revocation of acceptance, and has refused to provide Plaintiffs with the remedies to which Plaintiffs is entitled upon revocation.
18. The 540i remains in a defective and unmerchantable condition, and continues to exhibit some or all of the above mentioned defects which substantially impair its use, value and/or safety.
19. Plaintiffs have been and will continue to be financially damaged due to Manufacturer's failure to comply with the provisions of its warranty.
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.



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