# Merchain v. Thor Motor Coach, Inc.

> District Court, N.D. Indiana · December 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10161932

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** December 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10161932

## How later opinions describe it (automated extraction)

- explaining a statute of limitation is only a procedural constraint on when a suit may be filed
- explaining that the SBWA required the plaintiffs to successfully plead a breach of state warranty law to avoid dismissal
- holding the SBWA “supplements, rather than supersedes” the breach of warranty provisions in the Uniform Commercial Code (“UCC”)
- holding that the warranty promising to repair all defects in the subject vehicle for a period of 36 months or within the first 36,000 miles of use, whichever came first, was “the very definition of [an] express warranty of future performance” under the UCC language

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

BLANCA MERCHAIN, et al.,

Plaintiffs,

v. Case No. 3:20-CV-827 JD

THOR MOTOR COACH INC, et al.,

Defendants.

OPINION AND ORDER
Plaintiffs Blanca and Philip Merchain purchased a new Thor Motor Coach-manufactured
RV that proved to have a host of defects. The Merchains made efforts to get the defects fixed,
but after repairs proved fruitless, they sued Thor for failing to live up to the limited warranty that
had come with the RV. Thor responded to the Merchains’ lawsuit by moving the Court for
judgment on the pleadings, arguing that the Merchains brought suit after the statute of limitations
period on their claim had expired. (DE 38.) The Merchains oppose Thor’s motion and maintain
they filed on time. For the following reasons, the Court grants Thor’s motion.

I. Factual Background
The Merchains are California residents who purchased a new, Thor-manufactured RV from a
California RV dealer on August 28, 2018. (DE 28 ¶ 4.) The RV came with a limited warranty in
which Thor stated it would repair defects in workmanship performed and/or materials used to
assemble the RV for twelve months or 15,000 miles, whichever came first, after the Merchains
took delivery of the RV. (DE 39-1 at 2–3.)
In addition to setting out the length of its coverage, the warranty included provisions that
detailed the extent of the warranty, the timeline in which the Merchains had to bring any claims
for breach of the warranty, and the legal standards that would govern any future causes of action
arising from the warranty. Specifically, the warranty stated in bolded, capitalized letters that the
warranty was “not a warranty that promises or extends to future performance because the
warranty does not make a representation on how [the] motorhome will perform in the future but

instead represents only what the remedy will be if a defect exists.” (DE 39-1 at 4.) It also stated
in bolded, capitalized letters that any action for breach of the limited warranty had to be
commenced not more than fifteen (15) months after the breach occurred (DE 39-1 at 3), that
exclusive jurisdiction for deciding legal disputes related to breach of the warranty rests in
Indiana, that Indiana law would apply to all disputes, including any over statutes of limitations,
and that no effect would be given to a conflict of law rule that would result in the application of
the laws of a jurisdiction other than Indiana’s (DE 39-1 at 5).
The Merchains found a host of problems with their RV after purchasing and taking
possession of it. The problems included issues with the fresh and wastewater tanks that led to
overflowing, plumbing defects, water heater problems, and chassis failures. (DE 28 ¶ 8.) The

Merchains delivered their RV to Thor and Thor’s authorized repair facilities to attempt to have
these problems fixed, although it is not clear based on the pleadings when those deliveries and
attempted repairs were made. What is clear is that the Merchains found the repairs unsatisfactory
and untimely, which they viewed as not living up to the promises Thor had made through the
limited warranty. (DE 28 ¶ 9.) The Merchains thus sued Thor on May 26, 2020, seeking
restitution and costs for the damage they allegedly suffered from Thor’s failures to fix or replace
the RV. They originally brought several claims but have since clarified they are only proceeding
with a claim under California’s Song-Beverly Warranty Act (“SBWA”) for Thor’s failure to
conform to the limited warranty. (DE 43 at 2 n.1.)
II. Standard of Review
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the
pleadings after the parties have filed a complaint and answer. Fed. R. Civ. P. 12(c). Judgment on
the pleadings is appropriate when there are no disputed issues of material fact and the moving
party is entitled to judgment as a matter of law. Unite Here Loc. 1 v. Hyatt Corp., 862 F.3d 588,
595 (7th Cir. 2017). A moving party is entitled to judgment on the pleadings when it appears
beyond doubt that the non-moving party “cannot prove any facts that would support his claim for
relief.” N. Ind. Gun & Outdoors Shows v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998).
The Court is confined to the matters addressed in the pleadings and must review

allegations in the light most favorable to the non-moving party. See Kiddy-Brown v. Blagojevich,
408 F.3d 346, 355 (7th Cir. 2005). The pleadings include “the complaint, the answer, and any
written instruments attached as exhibits.” N. Ind Gun & Outdoor Shows, Inc., 163 F.3d at 452
(citing Fed. R. Civ. P. 10(c)). The Court may also consider documents attached to the motion for
judgment on the pleadings provided they are referred to in the plaintiffs’ complaint and are
central to the plaintiffs’ claim. Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014).
III. Discussion
Thor argues that judgment on the pleadings is appropriate here because the Merchains
filed their claim outside the relevant statute of limitations period and are thus legally barred from

proceeding with the claim. The Merchains countered that Thor’s motion should be denied
because Thor’s argument is premised on both an incorrect statute of limitations period and the
incorrect accrual date for the claim. Deciding whether to grant Thor’s motion based on the
statute of limitations requires the Court to first answer two preliminary questions. First, the Court
must determine which state’s law applies to the statute of limitations question on which the
motion is based, and second, the Court must determine how long the statute of limitations period
for the Merchains’ SBWA claim actually ran. Only then can the Court determine whether the
Merchains filed within the required period and whether Thor is entitled to judgment on the
pleadings. The Court relies to some extent on the text of Thor’s limited warranty covering the

RV, which Thor attached to its briefing on the motion, to answer these questions. See Adams,
742 F.3d at 729.

1. Choice of Law
The Court first looks to whether it must apply Indiana or California law. At the outset, the
Court notes that although neither party raised this point, there appears to be a valid choice of law
provision in the limited warranty on the Merchains’ RV that clearly indicates Indiana law applies
to the statute of limitations question. The provision in the warranty states that any causes of
action arising out of or relating to the limited warranty must be governed by Indiana law,
including statute of limitations questions, and that no conflict of law rule that would result in the
application of a state’s law other than Indiana’s should be given any effect. (DE 39-1 at 5.) The
Court finds that warranty language compels application of Indiana law to the statute of
limitations question here as the Merchains’ claim premised on Thor’s failure to conform the RV
to the warranty arises out of or relates to the limited warranty.
But even if the warranty did not have such a clear choice of law provision and the Court

was bound to a more traditional choice of law analysis like the parties explored in their briefing,
the Court would still find Indiana law governs the statute of limitations question. Both parties
appeared to agree that this Court, sitting in Indiana, must apply Indiana law when conducting a
traditional choice of law analysis. (DE 39 at 3; DE 43 at 3.) Under Indiana law, statute of
limitations questions are considered to be procedural in nature and the state’s choice of law rules
generally instruct that Indiana’s statute of limitations law will thus apply. See Shearer v. Thor
Motor Coach, Inc., 470 F. Supp. 3d 874, 879 (N.D. Ind. 2020). There is an exception to that
general rule, however, when the statute underlying the cause of action both created a right where
none existed at common law and placed a time limitation on the assertion of that right. Horvath

v. Davidson, 264 N.E.2d 328, 334 (Ind. App. 1970). If that exception applies, a court should
apply the law of the state in which the claim arose. The Merchains argued that exception applies
here because their claim arises under California’s SBWA and is not a standard breach of express
warranty claim. (DE 43 at 2.)
But the SBWA is not a statute that qualifies for the exception described in Horvath. First,
the SBWA did not create a distinct right of action where none existed at common law. Instead, it
was enacted to supplement common law breach of warranty claims. See Krieger v. Nick
Alexander Imports, Inc., 234 Cal. App. 3d 205, 213 (Ct. App. 1991) (holding the SBWA
“supplements, rather than supersedes” the breach of warranty provisions in the Uniform
Commercial Code (“UCC”)); Shearer, 470 F. Supp. 3d at 879 (recognizing that “a breach of

warranty claim is at its heart a breach of contract claim and suit for breach of contract existed at
common law”) (internal quotations omitted). Second, even if the SBWA had created a distinct
right, both the Merchains and Thor agree that the statute itself does not impose a time limitation
on the assertion of that right. (DE 43 at 4; DE 46 at 4–5.) It was instead the California courts, in
the absence of specific statute of limitations language in the SBWA, that decided what the statute
of limitations period for an SBWA claim should be. See Krieger, 234 Cal. App. 3d at 218.
Therefore, the Court finds the exception discussed in Horvath does not apply and that a
traditional choice of law analysis would also lead the Court to apply Indiana law to decide the
statute of limitations question.
2. Length of limitations period
Having established that the Court must look to Indiana law, the Court next determines
how long the limitations period for the SBWA claim ran. There is an area of agreement between
the parties at the outset with regard to the relevant limitations period. They both agree, as do the
courts, that the statute of limitations for an SBWA warranty claim is established by the same
UCC language that sets the statute of limitations for a generic breach of warranty claim. (DE 43
at 4; 46 at 4–5); Krieger, 234 Cal. App. 3d at 215. Both Indiana and California have adopted that
UCC language, which states:
1) An action for breach of any contract for sale must be commenced within four
(4) years after the cause of action has accrued. By the original agreement the
parties may reduce the period of limitation to not less than one (1) year, but may
not extend it.
2) A cause of action accrues when the breach occurs, regardless of the aggrieved
party’s lack of knowledge of the breach. A breach of warranty occurs when
tender of delivery is made, except that where a warranty explicitly extends to
future performance of the goods and discovery of the breach must await the
time of such performance, the cause of action accrues when the breach is or
should have been discovered.
Ind. Code § 26-1-2-725; Cal. Com. Code § 2725.
The parties took divergent views of what that language means for purposes of Thor’s
motion. Thor argued that the capitalized, bolded portion of its limited warranty that stated any
action for breach of the warranty had to be commenced within fifteen months of the breach
qualified as an agreement between the parties, consistent with the UCC language, to reduce the
limitations period for any claims arising out of the warranty from four years to fifteen months.
(DE 39-1 at 3) (“Any action for breach of this twelve (12) month or 15,000 mile limited warranty
. . . must be commenced not more than fifteen (15) months after the breach.”); (DE 46 at 2–3);
Ind. Code § 26-1-2-725; Cal. Com. Code § 2725 (“By the original agreement the parties may
reduce the period of limitation to not less than one (1) year, but may not extend it.”). The
Merchains countered that the language in the limited warranty does not apply to their claim
because their claim arises under the SBWA and is not a standard breach of express warranty
claim. They also argued that allowing the limitations period to be shortened would have forced

them to waive their rights and remedies under the SBWA, which the SBWA explicitly does not
allow. (DE 43 at 6); Cal. Civ. Code § 1790.1. Importantly, the Merchains did not state, and thus
can be considered to have waived any argument, that there was a factual dispute about the
meaning of the language in the warranty. They only argued that the warranty language “should
not apply” because they were “alleging a breach of the Song-Beverly Act, not a breach of the
express warranty.” (DE 43 at 6) (emphasis in original).
Thor has the correct argument here based on the language of the UCC and the language
of the limited warranty. The warranty language explicitly and unambiguously stated that “any
action” for breach of the warranty had to be brought within fifteen months of the breach. (DE 39-
1 at 3.) The Merchains have not disputed that they agreed to the warranty. (DE 43 at 6.) And

while the Merchains’ SBWA claim may arise under a specific statute instead of being a generic
breach claim, the Merchains themselves admitted that their claim is premised on Thor’s “failing
to conform the RV to the warranty” (DE 43 at 2 n.1), which demonstrates that the action is one
for breach of the warranty. Further, prior courts have found that an SBWA claim like the
Merchains’ is inexorably linked to a breach of express warranty claim. See Birdsong v. Apple,
Inc., 590 F.3d 955, 958 n.2 (9th Cir. 2009) (explaining that the SBWA required the plaintiffs to
successfully plead a breach of state warranty law to avoid dismissal); see also Barakezyan v.
BMW of N. Am., LLC, 2016 WL 11505592, at *8 (C.D. Cal. May 19, 2016); Darling v. Green,
2013 WL 12132058, at *4 (C.D. Cal. Apr. 18, 2013) (linking the ability to maintain an SBWA
claim to the ability to maintain a breach of express warranty claim under state law). The
Merchains’ description of the SBWA claim as stemming from Thor’s failure to conform the RV
to the warranty and prior courts’ holdings that SBWA claims are linked to breach of warranty
claims demonstrates that the Merchains’ SBWA claim fell within the limited warranty’s

language that made clear that “any action for breach of [the] limited warranty” had to be brought
within fifteen months after the breach.
That finding fits with, and is further supported by, the fact that courts have applied the
UCC language establishing the statute of limitations for breach of warranty claims to also
establish the statute of limitations for SBWA claims. Krieger, 234 Cal. App. 3d at 213; Ind.
Code § 26-1-2-725; Cal. Com. Code § 2725. The applicable UCC language explicitly allows for
a shortening of the statute of limitations time period, by agreement, to not less than one year. The
limited warranty validly did that here with its imposition of the fifteen-month timeline on any
action for breach of the warranty. (DE 39-1 at 3); cf. Snow v. Forest River, Inc., 2018 WL
6435649, *5 (N.D. Ind. Dec. 7, 2018); Dixon v. Monaco Coach Corp., 2009 WL 187837, at *2

(N.D. Ind. Jan. 27, 2009) (holding RV owner plaintiffs in Magnusson-Moss cases to a shortened,
fifteen-month limitations period based on language in their warranties that shortened the
limitations period).
The Court finally notes, in response to the Merchains’ concern about potential loss of
rights and remedies under the SBWA (DE 43 at 6), that the shortened timeline imposed in the
warranty did not force them to waive any SBWA rights or remedies. Imposition of a statute of
limitations on a plaintiff’s statutory claim does not modify the plaintiff’s substantive rights under
that statute. See Martin v. Thor Motor Coach, Inc., 474 F. Supp. 3d 978, 983 (N.D. Ind. 2020)
(explaining that a statute of limitations does not modify rights but only limits the period of time
in which an action may be brought); Kissel v. Rosenbaum, 579 N.E.2d 1322, 1326–27 (Ind. Ct.
App. 1991) (explaining a statute of limitation is only a procedural constraint on when a suit may
be filed). The Merchains still had all of their substantive rights under the SBWA available to
them after purchasing their RV whether the limitations period was four years or fifteen months.

The only difference was the time in which they were required to exercise those rights. Thus,
while the Court may find that there was a procedural limitation imposed on the Merchains
through the shortened limitations period, it does not find that the shortened period forced the
Merchains to waive any SBWA rights or remedies. The shortened, fifteen-month limitations
period imposed in the warranty is therefore properly applied to the Merchains’ SBWA claim.

3. Timing of breach
Having established that Indiana law applies to the Court’s consideration of the statute of
limitations and that the limitations period for the Merchains’ claim was fifteen months as
established in the limited warranty, the Court moves to the ultimate question of whether the
Merchains’ filed outside the limitations period. The answer depends on when the “breach” giving
rise to the Merchains’ claim is considered to have occurred. The UCC statute of limitations
language that applies to an SBWA claim states that a cause of action “accrues when breach
occurs” and that breach occurs “when tender of delivery is made” except “where a warranty
explicitly extends to future performance of the goods and discovery of the breach must await the

time of such performance, the cause of action accrues when the breach is or should have been
discovered.” (DE 43 at 4; DE 46 at 4–5); Ind. Code § 26-1-2-725; Cal. Com. Code § 2725.
The parties took divergent views of what that language means for breach in this case.
Thor argued that the limited warranty did not explicitly extend to future performance, which
meant any breach occurred upon tender of delivery. (DE 39 at 4.) The Merchains disagreed, once
again arguing that because their SBWA claim is different than a generic breach of warranty
claim, the claim deserves different treatment under the law. They specifically argued that any
SBWA claim gets the advantage of the UCC’s caveat for warranties that extend to future
performance of the goods, meaning that breach is only considered to have occurred when the

breach is or should have been discovered, otherwise known as the “discovery rule.” (DE 43 at 4–
5.) The Merchains supported their position with reference to the fact that a consumer must give a
manufacturer at least two opportunities to repair a defect before bringing an SBWA claim as well
as citation to a California appellate decision that stated application of the discovery rule fit with
the SBWA’s purpose given the statute’s multiple-repair requirement. (DE 43 at 5) (citing
Krieger, 234 Cal. App. 3d at 218–19 (explaining that adopting a position that allowed an SBWA
claim to accrue upon tender of delivery instead of applying the discovery rule would undermine
the legislative purpose of the SBWA)); Silvio v. Ford Motor Co., 109 Cal. App. 4th 1205, 1207
(2003).
While the Merchains are correct that Krieger included language about the discovery rule

aligning with the requirements for an SBWA claim, a review of subsequent caselaw interpreting
and extending Krieger to other SBWA claims shows that those courts did not read Krieger as
broadly mandating that the discovery rule be applied to any SBWA claim, as the Merchains
argued. Instead, in line with the UCC language, the courts interpreted Krieger as applying the
discovery rule only to those SBWA claims premised on a warranty that explicitly extended to
future performance. See Yetter v. Ford Motor Co., 428 F. Supp. 3d 210, 221–22 (N.D. Cal. 2019)
(quoting Cardinal Health 301, Inc. v. Tyco Elecs. Corp., 169 Cal App. 4th 116, 130 (2008)
(citing Krieger, 234 Cal. App. 3d at 217–19)) (holding that “[u]nder the Song-Beverly Act, an
express warranty claim normally accrues at tender of delivery, with a limited exception for future
performance” and that “the future performance exception ‘applies only when the seller has
expressly agreed to warrant its product for a specific and defined period of time’”) (emphasis in
original); Rodarte v. Ford Motor Co., 2019 WL 1100150, at *5 (C.D. Cal. Mar. 7, 2019) (citing
Krieger, 234 Cal. App. 3d at 217–19) (“The delayed discovery rule applies to Song-Beverly

claims where a warranty explicitly extends to future performance of the goods”) (internal
quotations omitted); Ferris v. Ford Motor Co., 2019 WL 1100376, at *4 (N.D. Cal. Mar. 8,
2019) (holding that the statute of limitations for the plaintiff’s SBWA claims began to run upon
tender of delivery in the absence of any evidence from the plaintiff that the warranty guaranteed
future performance).
The Court finds that those interpretations align with Krieger given that Krieger itself
involved a warranty that explicitly extended a promise of future performance. 234 Cal. App. 3d
at 217 (holding that the warranty promising to repair all defects in the subject vehicle for a
period of 36 months or within the first 36,000 miles of use, whichever came first, was “the very
definition of [an] express warranty of future performance” under the UCC language). It was only

after finding that the warranty before it extended to future performance and triggered the
discovery rule that the Krieger court added the language the Merchains cited in their response
brief about use of the discovery rule aligning with the purpose of the SBWA. 234 Cal. App. 3d at
217–19. After considering Krieger and the subsequent caselaw citing to it, the Court finds that a
case involving an SBWA claim and a warranty that does not explicitly extend a promise of future
performance is distinguishable from Krieger and that the Merchains’ contention that the
existence of an SBWA claim by itself mandates application of the discovery rule to determining
breach falls short. Application of the discovery rule to an SBWA claim is instead dictated by
whether the warranty on which the claim is premised is a warranty that extends to future
performance of the goods. See Yetter, 428 F. Supp. 3d at 221–22; Rodarte, 2019 WL 1100150 at
*5; Ferris, 2019 WL 1100376 at *4; Ind. Code § 26-1-2-725; Cal. Com. Code § 2725.
The Court thus moves to determine whether the limited warranty here extended to future
performance. Thor’s warranty stated that Thor would repair defects in workmanship and/or

materials if they arose and that coverage under the warranty would end “twelve (12) months after
the first retail owner takes delivery of the motorhome from an authorized dealership or after the
odometer reaches 15,000 miles, whichever occurs first.” (DE 39-1 at 2–3.) It also stated in
capitalized, bolded letters that the warranty “is not a warranty that promises or extends to future
performance because the warranty does not make a representation on how [the] motorhome will
perform in the future but instead represents only what the remedy will be if a defect exists.” (DE
39-1 at 4.)
California and Indiana law differ on how such a warranty is classified. Under California
law, a warranty like the one here, which covers repairs for a certain number of miles or a certain
amount of time, is considered a warranty extending to future performance. See Rodarte, 2019

WL 1100150 at *5 (holding a warranty guaranteeing the vehicle for five years or 100,000 miles
qualified as a warranty guaranteeing future performance); Krieger, 234 Cal. App. 3d at 217–19
(holding a warranty that guaranteed repair of a vehicle for 36 months or 36,000 miles was “the
very definition” of a warranty promising future performance). But in Indiana, it is not. Indiana
courts only consider a warranty to extend to future performance of the goods if the warranty’s
terms “unambiguously indicate the seller is warranting the future performance of the goods for a
specified period of time.” See Kenworth of Indianapolis, Inc. v. Seventy-Seven Ltd., 134 N.E. 3d
370, 377–78 (Ind. 2019). A promise by the warrantor to repair or replace defective goods alone,
even if that promise is for a specific amount of time or number of miles, is not considered a
promise of future performance. It is instead understood “as a limited remedy under the warranty
agreement.” Kenworth, 134 N.E. 3d at 379 (“we reject the premise that Sellers’ duty to repair
and replace defective goods alone constitutes a future-performance warranty under the UCC”).
The Court, as previously explained, must follow Indiana law in coming to its conclusion

about the statute of limitations dispute in this case. See Shearer, 470 F. Supp. 3d at 879; Horvath,
264 N.E.2d at 334. And applying Indiana law leads the Court to conclude the warranty here did
not explicitly extend to future performance of the goods. First, the warranty solely promised to
repair any covered defects discovered within the twelve-month or 15,0000 coverage period, not
that the RV would perform a certain way for the duration of the coverage period. (39-1 at 4.)
Pursuant to Kenworth, such a promise to repair potential defects is a limited remedy under the
warranty, not a promise of future performance. 134 N.E. 3d at 379. Second, the warranty
explicitly stated in capitalized, bolded letters that it “is not a warranty that promises or extends to
future performance.” (DE 39-1 at 4.) Such language further cuts against any argument that the
warranty unambiguously indicated it was warranting the future performance of the goods.

Because the warranty did not extend to future performance, it follows that the timing of breach
of the warranty is not governed by the discovery rule but instead by the time at which tender of
delivery occurred. See Yetter, 428 F. Supp. 3d at 221–22; Rodarte, 2019 WL 1100150 at *5;
Ferris, 2019 WL 1100376 at *4; Ind. Code § 26-1-2-725; Cal. Com. Code § 2725.
Having reached that conclusion, the Court finally moves to answer the central question in
this case, whether the Merchains’ claim is barred by the relevant statute of limitations. It is
undisputed that the Merchains received tender of delivery of their RV on August 28, 2018, when
they purchased it from a California RV dealer. (DE 28 at 2; DE 39 at 4.) Therefore, breach
legally occurred on August 28, 2018. Applying the fifteen-month limitations period that the
Court previously found applies means the Merchains had until November 28, 2019, to file their
SBWA claim. The Merchains filed their lawsuit on May 26, 2020, and thus filed outside the
relevant statute of limitations period. Because the Merchains filed their claim after the statute of
limitations period on that claim expired, they cannot succeed on the claim. Judgment on the

pleadings is thus appropriate. See N. Ind. Gun & Outdoors Shows, 163 F.3d at 452.

IV. Conclusion
For the foregoing reasons, the Court GRANTS Defendant Thor Motor Coach’s motion
for judgment on the pleadings (DE 38) and dismisses the Merchains’ Song-Beverly Warranty
Act claim with prejudice.

SO ORDERED.
ENTERED: December 28, 2021

/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10161932. Public record. Not legal advice.