Petition for Writ of Certiorari — Beverly Zylstra, et vir, Petitioners v. DRV, LLC

No. ________

In the

Supreme Court of the United States

________________________________

BEVERLY ZYLSTRA, BERNARD ZYLSTRA,

Petitioners

v.

DRV, LLC

Respondent

________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

RONALD L. BURDGE

Counsel of Record

ELIZABETH AHERN WELLS

Burdge Law Office Co., LPA

8250 Washington Village Dr.

Dayton, Ohio 45458

937.432.9500 voice

Ron@burdgelaw.com

Counsel for Petitioners

i

QUESTIONS PRESENTED

The Magnuson-Moss Warranty Act creates a private

right of action for any “consumer who is damaged by

the failure of a supplier, warrantor, or service

contractor to comply with any obligation under [the

Magnuson-Moss Warranty Act], or under a written

warranty, implied warranty, or service contract.” 15

U.S.C. § 2310(d)(1). A claim under the Magnuson-Moss

Warranty Act is dependent on the existence of an

underlying, viable state law warranty claim. Kuberski

v. Rev Rec. Grp., Inc., 5 F.4th 775, 778 (7th Cir.

2021)(citing Voelker v. Porsche Cars North America,

Inc., 353 F.3d 516, 525 (7th Cir. 2003)). However, the

Magnuson-Moss Warranty Act also requires by its own

terms that no court action may be brought for failure to

comply with any obligation under any written or

implied warranty unless the warrantor is afforded a

reasonable opportunity to cure such failure to comply.

15 U.S.C. § 2310(e); Anderson v. Gulf Stream Coach,

Inc., 662 F.3d 775, 781 (7th Cir. 2011). Thus, while the

Magnuson-Moss Warranty Act operates as a gloss on a

consumer’s state law breach of warranty claims, it also

requires that a consumer provide a warrantor with a

reasonable opportunity to cure as an additional

element. See Anderson v. Gulf Stream Coach, Inc., 662

F.3d 775, 781 (7th Cir. 2011).

The questions presented are:

1. Is the term “reasonable opportunity to cure” under

the Magnuson-Moss Warranty Act a flexible term

dependant on the facts and circumstances of each

case, or must a consumer provide a warrantor with

a numerical minimum of two (2) repair attempts as

ii

the Sixth Circuit has held, or a numerical minimum

of three (3) repair attempts as the Seventh Circuit

has held?

2. Is the question of what constitutes a “reasonable

opportunity to cure” under the Magnuson-Moss

Warranty Act an important question of federal law

that should be uniform nationwide and decided by

this Court?

3. Is a consumer wrongfully denied the right to a jury

trial where the district court and circuit court

depart from the normal course of judicial

proceedings?

iii

PARTIES TO THE PROCEEDING

Petitioners are Beverly Zylstra and Bernard

Zylstra. Petitioners were plaintiffs in the district court

and plaintiffs-appellants in the court of appeals.

Respondent is DRV, LLC. Respondent was the

defendant in the district court and defendant-appellee

in the court of appeals.

iv

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, petitioners state

as follows:

Petitioners Beverly Zylstra and Bernard Zylstra are

individuals.

v

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

• Zylstra v. DRV, LLC, No. 20-1949 (7th

Cir.)(opinion affirming judgment of district

court, issued August 10, 2021);

• Zylstra v. DRV, LLC, No. 1:18-CV-266 (N.D.

Ind.)(order granting motion for summary

judgment, entered May 18, 2020).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within the meaning of this Court’s

Rule 14.1(b)(iii).

vi

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO PROCEEDING . . . . . . . . . . . . . . . . . iii

CORPORATE DISCLOSURE STATEMENT . . . . . iv

STATEMENT OF RELATED PROCEEDINGS . . . . v

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . x

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A. Statutory Background . . . . . . . . . . . . . . . . . . . 2

B. Factual Background . . . . . . . . . . . . . . . . . . . . . 4

C. Procedural History . . . . . . . . . . . . . . . . . . . . . 12

REASONS FOR GRANTING THE PETITION . . . 13

I. This Court should resolve the circuit split on

what constitutes a “reasonable opportunity to

cure” under the Magnuson- Moss Warranty

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. This Court should settle what constitutes a

“reasonable opportunity to cure” under the

Magnuson-Moss Warranty Act . . . . . . . . . . . 19

vii

A. A nationwide answer would further

the purpose of the Magnuson-Moss

Warranty Act . . . . . . . . . . . . . . . . . . . . . . 20

B. A nationwide answer would make

warranties enforceable in the Seventh

Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. A nationwide answer would provide

uniformity for both warrantors and

consumers. . . . . . . . . . . . . . . . . . . . . . . . . 22

D. A nationwide answer would prevent

circuit courts from rewriting the

Magnuson-Moss Warranty Act . . . . . . . . 23

III.

This Court should protect a consumer’s

right to have a jury decide factual

disputes under the accepted and normal

course of judicial proceedings . . . . . . . . . 24

A. The Seventh Circuit Departed from

Accepted Judicial Proceedings When It

Defined What Constitutes A

Reasonable Opportunity to Cure. . . . . . . 24

B. The Seventh Circuit Departed from

Accepted Judicial Proceedings When It

Decided Material Factual Disputes. . . . . 26

i.

The Court engaged in factfinding when it determined

that DRV and its authorized

dealer’s refusals to perform

warranty repairs were

immaterial . . . . . . . . . . . . . . . . . . . 27

viii

ii.

The Court engaged in factfinding when it determined

whether the Zylstras

presented DRV with a

reasonable opportunity to

repair the RV’s Black

Holding Tank Leak . . . . . . . . . . . . 29

iii.

The Court engaged in factfinding in determining how

many days the RV was out

of service by reason of repair

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv.

The Court departed from

accepted

judicial

proceedings by misapply the

Rule 56 standard . . . . . . . . . . . . . 34

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Seventh Circuit

(August 10, 2021) . . . . . . . . . . . . . App. 1

Appendix B Opinion and Order in the United

States District Court for the Northern

District of Indiana Fort Wayne Division

(May 18, 2020) . . . . . . . . . . . . . . App. 29

Appendix C Judgment in a Civil Action in the

United States District Court for the

Northern District of Indiana

(May 18, 2020) . . . . . . . . . . . . . . App. 59

ix

Appendix D Relevant Portions of the MagnusonMoss Warranty Act, 15 U.S. Code

. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 61

15 U.S.C. § 2301 . . . . . . . . . . . . . App. 61

15 U.S.C. § 2302 . . . . . . . . . . . . . App. 64

15 U.S.C. § 2310 . . . . . . . . . . . . . App. 70

15 U.S.C. § 2311 . . . . . . . . . . . . . App. 77

x

TABLE OF AUTHORITIES

CASES

Anderson v. Gulf Stream Coach, Inc.,

662 F.3d 775 (7th Cir. 2011). . . . . . . . . . . . . . . i, 4

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 106 S. Ct. 2505 (1986) . . . . . . 27, 33

Automobile Importers of America, Incorporated

v. Minnesota,

871 F.2d 717 (8th Cir. 1989). . . . . . . . . . . . . . . . . 3

Cunningham v. Fleetwood Homes of Ga.,

253 F.3d 611 (11th Cir. 2001). . . . . . . . . . . . . 3, 19

Davis v. Southern Energy Homes, Inc.,

305 F.3d 1268 (11th Cir. 2002). . . . . . . . . . . . . . . 3

First National Bank of Arizona v.

Cities Service Co.,

391 U.S. 253, 88 S. Ct. 1575,

20 L. Ed. 2d 569 (1968) . . . . . . . . . . . . . . . . passim

Kisor v. Wilkie,

139 S. Ct. 2400 (2019). . . . . . . . . . . . . . . . . . . . . 23

Kuberski v. Rev Rec. Grp., Inc.,

5 F.4th 775 (7th Cir. 2021) . . . . . . . . . . . . . . . . i, 4

Learning Curve Toys, Inc. v.

PlayWood Toys, Inc.,

342 F.3d 714 (7th Cir. 2003). . . . . . . . . . . . . . . . 24

Martin v. Thor Motor Coach Inc.,

2021 U.S. District LEXIS 186781

(N.D. Ind. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . 22

xi

Mathews v. REV Rec. Grp., Inc.,

931 F.3d 619 (7th Cir. 2019). . . . . . . . . . . . . . . . 21

Metavante Corporation v. Emigrant Sav. Bank,

619 F.3d 748 (7th Cir. 2010). . . . . . . . . . . . . . . . 24

Peterson v. Culver Educational Foundation,

402 N.E.2d 448 (Ind. App. 1980) . . . . . . . . . . . . 31

Ramos v. Haig,

716 F.2d 471 (7th Cir. 1983). . . . . . . . . . . . . . . . 25

Shearer v. Thor Motor Coach,

470 F. Supp. 3d (N.D. Ind. 2020) . . . . . . . . . 18, 21

Skelton v. General Motors Corp.,

660 F.2d 311 (7th Cir. 1981). . . . . . . . . . . . . . . . . 3

Smith v. Great Am. Restaurants, Inc.,

969 F.2d 430 (7th Cir. 1992). . . . . . . . . . . . . . . . 25

Smith v. Rowe,

761 F.2d 360 (7th Cir. 1985). . . . . . . . . . . . . . . . 25

State Farm Fire and Casualty Company

v. Tashire,

386 U.S. 523, 87 S. Ct. 1199 (1967) . . . . . . . . . . . 3

Temple v. Fleetwood Enters.,

133 Fed. Appx. 254 (6th Cir. 2005) . . . . . . . . . . 16

Time Warner Cable v. Doyle,

66 F.3d 867 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Diebold, Inc.,

369 U.S. 654 (1962). . . . . . . . . . . . . . . . . . . . . . . 26

xii

Venezia v. Bentley Motors, Inc.,

374 Fed. Appx. 765 (9th Cir. 2010) . . . . . . . . . . 17

Voelker v. Porsche Cars North America, Inc.,

353 F.3d 516 (7th Cir. 2003). . . . . . . . . . . . . . . . . i

Walsh v. Ford Motor Company,

627 F. Supp. 1519 (D.C. Cir. 1986) . . . . . . . . . . . 3

Wilson v. Waverlee Homes,

954 F. Supp. 1530 (M.D. Ala. 1997) . . . . . . . . . . . 3

STATUTES

15 U.S.C. § 2301 . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12

15 U.S.C. § 2302(a). . . . . . . . . . . . . . . . . . . . . . . . 3, 20

15 U.S.C. § 2310(d)(1) . . . . . . . . . . . . . . . . i, 3, 25, 31

15 U.S.C. § 2310(d)(3)(B) . . . . . . . . . . . . . . . . . . . . . 12

15 U.S.C. § 2310(e) . . . . . . . . . . . . . . . . 1, 4, 15, 17, 23

15 U.S.C. § 2311(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ala. Code § 8-20A1(1). . . . . . . . . . . . . . . . . . . . . . . . 25

Cal. Civ. Code § 1793.22(e) . . . . . . . . . . . . . . . . . . . 25

Ind. Code § 24-5-13-5 . . . . . . . . . . . . . . . . . . . . . . . . 25

Iowa Code § 322G.2(13) . . . . . . . . . . . . . . . . . . . . . . 25

Ohio Rev. Code Ann. § 1345.71(D) . . . . . . . . . . . . . 25

xiii

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . 23

RULES & REGULATIONS

Federal Rules of Civil Procedure 56(e) . . . . . . . . . . 26

OTHER AUTHORITIES

40 Fed. Reg. 60,168, 60,170 (Dec. 31, 1975) . . . . . . 19

40 Fed. Reg. 60168 (1975) . . . . . . . . . . . . . . . . . . . . . 3

119 CONG. REC. 972 (1973) . . . . . . . . . . . . . . . . . . . 3

H.R. Rep. No. 1107, 93rd Cong., 2nd Sess.,

reprinted in 1974 U.S. Code Cong.

& Admin. News 7702 . . . . . . . . . . . . . . . . . . . . . . 3

S. Rep. No. 93-151 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

LENDINGTREE, Average RV Cost – and What Else to

Know About Buying and Owning an RV,

https://www.lendingtree.com/auto/rv/

cost-of-owning-an-rv/

(last updated Mar. 1, 2021) . . . . . . . . . . . . . . . . 18

Jason & Rae Miller, Why Does RV Warranty Work

Take So Long?, GETAWAY COUPLE,

(July 25, 2020), https://www.getawaycouple.com/

why-does-rv-warranty-work-take-so-long/. . . . . 21

Press Release, Thor Industries, Inc.,

Thor Indus. Reports Record Fiscal 2021 Results

as Net Sales Top $12.3 With Earnings Per Share

of $11.85 (September 28, 2021)

(on file with author) . . . . . . . . . . . . . . . . . . . . . . 18

xiv

RVIA, December 2020 Market Report,

Wholesale Recreation Vehicle Shipments,

https://www.rvia.org/system/files/media/file/

December%202020%20Market%20Report.pdf . 18

RVIA, RV RoadSigns Quarterly Forecast,

https://www.rvia.org/rv-roadsignsquarterly-forecast

(Last visited Oct. 26, 2021). . . . . . . . . . . . . . . . . 18

Ray Roman, RV Warranties-Over 90 RV

Manufacturers Warranty Information,

GO TRAVEL TRAILERS,

https://gotraveltrailers.com/rv-warranties/

(last updated September 18, 2021) . . . . . . . . . . 21

J.L. Seto, Why Are So Many RVs Made in Indiana,

MOTORBISCUIT (November 23, 2020),

https://www.motorbiscuit.com/

why-are-so-many-rvs-made-in-indiana/. . . . . . . 18

1

PETITION FOR WRIT OF CERTIORARI

This case involves a federal warranty law that gives

federal rights and remedies to virtually every consumer

in the United States, but whether the consumer can

enforce that law and obtain those remedies presently

depends on where the consumer lives.

The Magnuson-Moss Warranty Act is a sweeping

statute that applies to all consumer products over $5

that come with either a warranty or service contract.

The Act’s remedial purpose is to provide consumers

with additional rights and remedies for a breach of

warranty greater than traditionally permitted under

state law. The Act has garnered particular attention

due to the rise in recreational vehicle sales and

subsequent recreational vehicle warranty litigation.

Litigation often revolves around whether the

consumer provided the warrantor with a “reasonable

opportunity to cure” defects, as required under the Act.

The Circuit Courts are currently split on what

constitutes a “reasonable opportunity to cure”. The

term “reasonable” is traditionally left to the trier of

fact. However, the Sixth and Seventh Circuits have

narrowly construed the term, and effectively rewritten

the Act, to require that a numerical minimum number

of repair attempts be provided to the warrantor,

regardless of the nature of the consumer product, the

defects, the days out of service, or the surrounding

circumstances. This narrow construction thwarts the

Act’s purpose by effectively stripping consumers of

their federal warranty rights and remedies.

2

Petitioners respectfully request that the Court grant

certiorari in order to resolve the split between the

Circuit Courts, to resolve an important question of

federal law which should be decided by this Court, and

to correct the actions of the Seventh Circuit.

OPINIONS BELOW

The Seventh Circuit’s decision affirming the district

court’s grant of summary judgment is reported at 8

F.4th 597 (7th Cir. 2021) and reproduced in the

Appendix (“App.”) at 1-25. The district court’s opinion

is not reported in the Federal Reporter, but is reported

at 2020 U.S. Dist. LEXIS 86341 and reproduced at

App. 26-47.

JURISDICTIONAL STATEMENT

The judgment of the Seventh Circuit was entered on

August 10, 2021. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant portions of the Magnuson-Moss Warranty

Act, 15 U.S.C. § 2301, et seq, are reproduced at App.

61-79.

STATEMENT OF THE CASE

A.

Statutory Background

The Magnuson-Moss Warranty Act (“MMWA”)

creates a private right of action for any "consumer who

is damaged by the failure of a supplier, warrantor, or

service contractor to comply with any obligation under

3

[the MMWA], or under a written warranty, implied

warranty, or service contract." 15 U.S.C. § 2310(d)(1).

The MMWA applies to consumer products that come

with a warranty and were purchased for more than

$5.00. See 15 U.S.C. § 2302(a). And, it is a remedial

statute that should be liberally construed in favor of

the consumer. See Walsh v. Ford Motor Co., 627 F.

Supp. 1519, 1523-24 (D.C. Cir. 1986)(citing Skelton v.

General Motors Corp., 660 F.2d 311, 313-14 (7th Cir.

1981)); State Farm Fire & Cas. Co. v. Tashire, 386 U.S.

523, 87 S. Ct. 1199 (1967).

Congress passed the MMWA to create additional

remedies for consumers for breach of warranty, Walsh

v. Ford Motor Co., 807 F.2d 1000, 1006 (D.C. Cir.

1986), to enhance consumer protection, Automobile

Importers of America, Inc. v. Minnesota, 871 F.2d 717,

722 (8th Cir. 1989)(citing H.R. Rep. No. 1107, 93rd

Cong., 2nd Sess., reprinted in 1974 U.S. Code Cong. &

Admin. News 7702 and 7722), and to provide

consumers with an economically feasible private right

of action. Cunningham v. Fleetwood Homes of Ga., 253

F.3d 611, 616 (11th Cir. 2001)(citing Wilson v. Waverlee

Homes, 954 F. Supp. 1530, 1538 (M.D. Ala.

1997)(quoting 119 CONG. REC. 972 (1973)). Congress

was also concerned with addressing the unequal

bargaining power between warrantors and consumers

in creating the MMWA. Davis v. Southern Energy

Homes, Inc., 305 F.3d 1268, 1277 (11th Cir.

2002)(citing S. Rep. No. 93-151, quoted in 40 Fed. Reg.

60168 (1975)).

A claim under the MMWA is dependent on the

existence of an underlying, viable state law warranty

4

claim. Kuberski v. Rev Rec. Grp., Inc., 5 F.4th 775, 778

(7th Cir. 2021). The MMWA also requires by its own

terms that no court action may be brought for failure to

comply with any obligation under any written or

implied warranty unless the warrantor is afforded a

reasonable opportunity to cure such failure to comply.

15 U.S.C. § 2310(e); Anderson v. Gulf Stream Coach,

Inc., 662 F.3d 775, 781 (7th Cir. 2011).

Thus, the MMWA operates as a gloss on a

consumer’s state law breach of warranty claims, but

also requires that a consumer provide a warrantor with

a reasonable opportunity to cure as an additional

element. See Anderson, 662 F.3d at 781. Where the

applicable state law also requires a “reasonable

opportunity to cure” as an element of a breach of

warranty, but the state law definition restricts the

consumer’s rights or remedies under the MMWA, the

MMWA definition preempts the state law definition

and controls. See Time Warner Cable v. Doyle, 66 F.3d

867, 875 (1996); 15 U.S.C. § 2311(b)(1).

B. Factual Background

This case involves a defective 2016 DRV Mobile

Suites recreational vehicle (“RV”) which was warranted

by DRV, LLC, and purchased new by Bernard and

Beverly Zylstra, but which DRV, LLC refused to repair,

and failed to repair 38 defects within six (6) repair

opportunities and 230 days.

On March 6, 2017, the Zylstras purchased a new

2016 DRV Mobile Suites RV for $91,559.15 from

Bradley Bourbonnais Chevy Hyundai RV (“Bradley”) in

Bourbonnais, Illinois. Aff. Zylstra, ¶2 (Ex 2; Doc 28-3;

5

Appx. P28); Buyer’s Order (Ex 4; Doc 28-5).1 The

Zylstras purchased the RV for their own recreational

use and enjoyment in their retirement. Aff. Zylstra, ¶3

(Ex 2; Doc 28-3; Appx. P28). The RV came with a 1 year

limited warranty from DRV, LLC (“DRV”). Id, at ¶4;

Warranty (Ex 7; Doc 28-8; Appx. P25). Under the

warranty, DRV warrants the RV, “to be free from

defects in materials and workmanship supplied and

attributable to DRV during normal use.” Warranty (Ex

7; Doc 28-8; Appx. P25). Thus, unless excluded in the

“Not Covered Under DRV Warranty” section, a problem

is considered to fall within the coverage of the DRV

warranty. Id.

The Zylstras left the RV at Bradley after purchase

on March 6, 2017 and came back to take delivery of it

on April 27, 2017. Aff. Zylstra, ¶7 (Ex 2; Doc 28-3;

Appx. P28). While the RV was at Bradley between

March 6, 2017 and April 27, 2017, Bradley

surreptitiously made repairs to the following defects

under the DRV warranty: Oil Leak at Right Rear Axel,

Entry Door Will Not Lock, and Rear Reflector Missing.

Id, at ¶8; DRV Warranty Claims, pg 137 (Ex 8; Doc 289).

On April 29, 2017, after a two day “shakedown” trip,

the Zylstras called their Salesman, who told them to

bring the RV back to Bradley for repairs. Aff. Zylstra,

¶9-11 (Ex 2; Doc 28-3; Appx. P28). The RV was at

Bradley, a factory warranty authorized repair shop, for

1

Citations to “Ex” reference exhibits filed in opposition to

summary judgment, “Doc” refers to specific district court ECF

filing numbers, and “Appx.” refers to the appellate court appendix.

6

about 22 days from April 29, 2017 until May 20, 2017,

for repair of the following defects: Grey Tank Valve Not

Closing, Over the Air Antenna Showing Codes, Right

Rear Storage Compartment Leaks, Overhead

Compartments Missing Screw, Kitchen Drawer Slides

Not Working Properly, Entry Door Will Not Lock,

Fireplace LED Readout Doesn’t Show Numbers

Correctly, Remote Will Not Turn Fireplace On, Toilet

Valve Leaks, Microwave Installed Crooked, TV

Installed Crooked, Quarter Round at Stairs Loose,

Batteries Do Not Hold Charge, Bathroom Sink

Draining Slow, Kitchen Light Cover Missing, Basement

Door Lifts Weak, and Bubbles in Roofing on Drivers

Side. Id, at ¶12.

Bradley inspected the RV, reported the defects to

DRV, and requested warranty authorization on May 3,

2017. Warranty Claims, pg 138 (Ex 8, Doc 28-9).

However, about a week after the Zylstras dropped the

RV off for repairs, the Bradley Service Manager

advised the Zylstras that there was damage to the RV’s

roof. Aff. Zylstra, ¶13 (Ex 2; Doc 28-3; Appx. P28). A

dispute arose between the Zylstras and Bradley

regarding the cause of the roof damage. Id. Ultimately,

the Zylstras decided to submit the roof damage to their

insurance company. Id.

The Zylstras planned to have Bradley repair the

RV’s roof, but Bradley’s repair estimate was extremely

high, and DRV offered to repair the RV’s roof at its

factory in Indiana for about half the price. Id, at ¶15.

When Mr. Zylstra told the Bradley Service Manager

that he was having the roof repaired at the DRV

factory instead, the Service Manager refused to do any

7

further warranty repairs to the RV. Id, at ¶16.

Subsequently, the Zylstras picked up the RV from

Bradley on May 20, 2017. Id. at ¶16, 18.

When Mr. Zylstra was scheduling the DRV factory

repair in May, he asked DRV to fix the same 17

warranty defects that Bradley had refused to repair at

the factory, in addition to replacing the roof. Id. at ¶16.

DRV refused. Id.

The Zylstras took the RV to the DRV factory repair

shop in Indiana for the scheduled roof repair on June

21, 2017. Id, at ¶18. The RV was in the shop for about

4 days until June 24, 2017 for the roof repair. Id.; DRV

Repair Order (Ex 9; Doc 28-10). DRV did not take this

opportunity to perform any warranty repairs to the RV,

even though the Zylstras had requested and given DRV

the opportunity to do so. While the Zylstras were at

DRV, they contacted Plaza RV to schedule a third

repair of the list of 17 defects that both Bradley and

DRV had refused to repair. Aff. Zylstra, ¶19 (Ex 2; Doc

28-3; Appx. P28).

The Zylstras dropped the RV off for repair at Plaza

RV, another factory warranty authorized repair shop,

on June 27, 2017, for about 51 days for repair of the

following 18 defects under warranty: Grey Tank Valve

Not Closing, Over the Air Antenna Showing Codes,

Right Rear Storage Compartment Leaks, Overhead

Compartments Missing Screw, Kitchen Drawer Slides

Not Working Properly, Entry Door Will Not Lock,

Fireplace LED Readout Doesn’t Show Numbers

Correctly, Remote Will Not Turn Fireplace On, Toilet

Valve Leaks, Microwave Installed Crooked, TV

Installed Crooked, Quarter Round at Stairs Loose,

8

Batteries Do Not Hold Charge, Bathroom Sink

Draining Low, Kitchen Light Cover Missing, Basement

Door Lifts Weak, Grease Cap Broken, and Hub Cap

Missing. Id, at ¶19, 20; Plaza RV Repair Order #1 (Ex

10; Doc 28-11).

The RV had more problems, so on September 11,

2017, the Zylstras took the RV back to Plaza RV for

about 102 days for repair of the following 16 defects

under warranty: Vent Fan in Bathroom Tries to Close

When Already Closed, Fresh Water Tank Indicator

Inoperative, LP Detector Panel Not Calibrated, Ceiling

Light Cover Loose, Molding in Walk In Closet Not

Attached, Over Air Antenna Showing Codes, Door Hold

Will Not Stay Open, Quarter Round on Pantry Loose,

7 Way Plug Cover Broken, AM Radio Reception Poor,

Black Holding Tank Hard to Close, Black Holding Tank

Leaks, Bedroom Drawer Not Closing, Gas Switch on

Range Hard to Light, Vent Cap Loose, Overhead

Compartments Missing Screw. Aff. Zylstra, ¶22 (Ex 2;

Doc 28-3; Appx. P28); Plaza RV Repair Order #2 (Ex

11; Doc 28-12).

On October 16, 2017, frustrated with the repair

delay, the Zylstras sent a letter to the President of

Heartland RV (who owns DRV) telling him about the

problems with the RV, DRV’s authorized dealers’ failed

repair attempts, repair delays, and missteps. Aff.

Zylstra, ¶22 (Ex 2; Doc 28-3; Appx. P28); Letter

Heartland (Ex 16; Doc 28-17). The Zylstras picked the

RV up on December 21, 2017 from Plaza RV– barely in

time for their previously planned trip to Texas. Aff.

Zylstra, ¶22 (Ex 2; Doc 28-3; Appx. P28).

9

At the beginning of 2018, the Zylstras left for their

trip to Texas. Id, at ¶23. About a week into the trip,

after they dumped the grey and black tanks, they

started to smell a strong odor. Id. Mr. Zylstra

discovered that the black tank valve was leaking at the

flange connections and that sewage had been leaking

from the tank into insulation throughout the

underbelly of the RV. Id. However, none of the DRV

authorized dealers that the Zylstras called would come

out to their location. Id. Eventually, the Zylstras called

a mobile technician service, Gabriel’s Maintenance,

who agreed to come to them for repairs. Id.

On January 26, 2018, Gabriel’s Maintenance

repaired the following defect: Black Holding Tank

Leaks. Id, at ¶24. The technician from Gabriel’s

Maintenance took the valve gaskets out, cleaned the

valve seals, cleaned the valve, had Mr. Zylstra shut the

valve completely, and replaced the valve gaskets

between the two flanges. Id. This was actually the

second repair to the RV’s black holding tank. See Id, at

¶22; Plaza RV Repair Order #2 (Ex 11; Doc 28-12). In

fact, the black holding tank was first subject to repair

by Plaza RV for 102 days from September 11, 2017

until December 21, 2017 when the Zystras reported

that the black tank valve was hard to close and was

possibly leaking. Aff. Zylstra, ¶22 (Ex 2; Doc 28-3;

Appx. P28); Plaza RV Repair Order #2, Job 11 at pg 3

of 5 (Ex 11; Doc 28-12). This is the very same valve

that Gabriel’s Maintenance determined was

misaligned, Aff. Zylstra, ¶24 (Ex 2; Doc 28-3; Appx.

P28), and that RV expert technician Mr. Simmons

determined had a defective flange from the time of

manufacture. Aff. Simmons, ¶10 (Ex 19; Doc 28-24);

10

Simmons Depo, 34:23-35:8 (Def Ex E; Doc 23-5);

Simmons Am. Report (Ex 19b; Doc 28-26).

Soon after, the Zylstras contacted Mr. Weldon from

DRV about the Black Holding Tank Leak and he

agreed that DRV would reimburse the Zylstras under

the DRV warranty for the repair performed by

Gabriel’s Maintenance. Id, at ¶25. They also discussed

the possibility of the RV going back to the DRV factory

to clean up the sewage that had leaked into the RV. Id.

However, during a call on February 5, 2018, Mr.

Weldon told the Zylstras that DRV would not

guarantee that they would be able to clean up the

sewage or that the sewage smell would ever go away.

Id. Mr. Weldon also told the Zylstras that any cleanup

would not be covered under the DRV warranty. Id.

The Zylstras left the RV resort in Texas on March 5,

2018, and stopped using the RV out of concern for their

health. Id, at ¶29. Despite the many repairs and

numerous days out of service, the following defects

were never repaired: Black Tank Sewage Leaked Into

Underbelly, Microwave Installed Crooked, TV Installed

Crooked, Batteries Do Not Hold Charge, Over Air

Antenna Showing Codes, Door Hold Will Not Stay

Open, and Gas Switch on Range Hard to Light. Aff.

Zylstra, ¶27 (Ex 2; Doc 28-3; Appx. P28). Additionally,

the Zylstras later discovered 12 latent defects in the

RV, including water leaks at the living room slide out

and transition seam. Id, at ¶28.

This RV is not and never has been fit for its

ordinary purpose of recreational use because of its

many defects. Id, at ¶40, 45. And, according to

environmental expert Mr. Althouse, it is certainly not

11

fit for safe recreational use, nor should it be used until

all repairs and moisture damage remediation are

complete. Aff. Althouse, ¶20 (Ex 18, Doc 28-19);

Althouse CV (Ex 18a, Doc 28-20); Althouse Report (Ex

18b, Doc 28-21); Althouse Supp. Report (Ex 18c, Doc

28-22); Althouse Reb. Report (Ex 18d, Doc 28-23). The

RV has had problems from the start and has never

been defect free or working 100% as designed. Aff.

Zylstra, ¶45 (Ex 2; Doc 28-3; Appx. P28).

Expert RV technician Mr. Simmons and

environmental expert Mr. Althouse inspected the RV,

and reached some conclusions regarding its condition

and multitude of defects. Specifically, with regards to

the Black Holding Tank Leak, Mr. Althouse verified

the prior persistent wetting of the RV underbelly with

black water sewage in a 5 square foot area, determined

that moisture damage remediation of the black water

sewage stained underbelly was reasonable and

necessary, and determined that the Black Holding

Tank Leak was caused by a faulty black tank valve

flange. Aff. Althouse, ¶12, 13, 19, 23 (Ex 18, Doc 28-19);

Althouse Report (Ex 18b, Doc 28-21); Althouse Supp.

Report (Ex 18c, Doc 28-22); Althouse Reb. Report (Ex

18d, Doc 28-23). Mr. Simmons verified this defect and

came to the same conclusion as to its cause. Simmons

Am. Report (Ex 19b, Doc 28-26); Simmons Reb. Report

(Ex 19c, Doc 28-27). And, according to Mr. Simmons,

the black tank valve flange was defective at the time of

manufacture. Aff. Simmons, ¶10 (Ex 19, Doc 28-24);

Simmons Am. Report (Ex 19b, Doc 28-26); Simmons

Reb. Report (Ex 19c, Doc 28-27).

12

The Zylstras do not trust that DRV or its authorized

dealers can ever fix their RV right. Aff. Zylstra, ¶45 (Ex

2; Doc 28-3; Appx. P28). The Zylstras paid more than

$90,000.00 for an RV they have been unable to use or

enjoy most of the time that they have owned it and

continue to make payments monthly. Id. If the Zylstras

had known about the RV’s many problems, they never

would have purchased it. Id, at ¶44. And, the RV was

worth significantly less than what the Zylstras paid for

it because of its many defects, time out of service, and

failed repairs. Id; Aff. Grismer, ¶13 (Ex 20, Doc 28-28);

Grismer Report (Ex 20c, Doc 28-31).

C. Proceedings Below

The Zylstras filed their Complaint on August 27,

2018, alleging claims against DRV for: (1) breach of

express and implied warranties under state law, (2)

violation of the MMWA, and (3) violation of the

Indiana, Illinois, Texas, or Iowa Consumer Protection

Acts (Doc 1, SR pg 2).2 DRV filed its Answer on October

26, 2020 (Doc 12; SR pgs 2-3).

The district court had federal question jurisdiction

over this matter, pursuant to 28 U.S.C. § 1331, because

a federal claim exists under the MMWA, 15 U.S.C.

§ 2301 et seq, and the amount in controversy exceeds

$50,000 as mandated by 15 U.S.C. § 2310(d)(3)(B).

DRV filed a motion for summary judgment on

January 31, 2020 (Doc 22, SR pg 4; Doc 23, SR pg 4).

The district court issued an Opinion and Order

granting DRV’s motion for summary judgment as to all

2

Citations to “SR” reference the district court’s Short Record.

13

claims, which was entered, along with final judgment,

on May 18, 2020 (App. 26). In doing so, the district

court determined that the Zylstras had failed to provide

DRV with a “reasonable opportunity to cure” the RV’s

defects. (App. 46). The Zylstras timely filed their notice

of appeal on June 4, 2020 (Doc 49, SR pg 6).

The Seventh Circuit had appellate jurisdiction

pursuant to 28 U.S.C. § 1291, because the appeal was

from a final decision of the district court. The Seventh

Circuit issued its decision on August 10, 2021,

affirming the decision of the district court. (App. 1). In

doing so, the Seventh Circuit also determined that the

Zylstras had failed to provide DRV with a “reasonable

opportunity to cure” the RV’s defects. (App. 2).

Specifically, the Seventh Circuit held that a

quantitative number of three (3) failed repair attempts

is necessary to provide a “reasonable opportunity to

cure” under the MMWA, and that the days out of

service did not cause the warranty to fail of its

essential purpose under the MMWA. (App. 8-9).

REASONS FOR GRANTING THE PETITION

The Seventh Circuit’s holding is problematic for

three main reasons.

First, the Seventh Circuit’s holding creates an

important conflict between circuit courts as to what

constitutes a “reasonable opportunity to cure” under

the MMWA. The Sixth Circuit has held that a

minimum number of two (2) repair attempts must be

provided, while the Seventh Circuit here held that a

minimum number of three (3) repair attempts must be

provided. No other Circuit Court has defined

14

“reasonable opportunity to cure” using a numerical

minimum number of repair attempts. This Court

should resolve the circuit court split to create

uniformity nationwide for both warrantors and

consumers in the application of the federal law, to

prevent forum shopping, and to reach a result on the

issue which is consistent with the purpose of the

MMWA.

Second, the issue of what constitutes a “reasonable

opportunity to cure” under the MMWA is an important

question of federal law that has not been, but should

be, decided by this Court. As outlined below, RV sales

are at an all time high, one recreational vehicle

manufacturer has reported sales figures already in

excess of $12 billion for 2021 alone, many RV

warranties contain unreasonable hoops for consumers

to jump through in a short 1 year warranty period, and

the average price of an RV is over $95,000. Thus, a lack

of uniformity in consumer warranty rights under the

MMWA is certainly an important matter for the Court

to resolve. Additionally, RV litigation is on the rise. A

decision on the issue by this Court would be consistent

with the purpose of the Act, would resolve practical and

recurring problems, would provide uniformity to both

warrantors and consumers alike, and could prevent

circuit courts from impeding the effectiveness of the

Act.

Third, the Seventh Circuit departed from the

accepted and usual course of judicial proceedings by

exercising legislative authority, failing to follow

precedent, misapplying the summary judgment

standard, and improperly making factual

15

determinations relating to disputed issues of material

fact when affirming the district court’s grant of

summary judgment as to all claims.

Therefore, the Zylstras respectfully request that the

Court grant certiorari in order to resolve a conflict

between the circuit courts, to resolve an important

question of federal law which should be decided by this

Court, and to correct the actions of the Seventh Circuit.

I. This Court should resolve the circuit split

on what constitutes a “reasonable

opportunity to cure” under the MagnusonMoss Warranty Act

This case presents an important question over

which the circuit courts are divided concerning what

constitutes a “reasonable opportunity to cure” under

the MMWA.

Under the MMWA, “[n]o action...may be brought

under subsection (d) for failure to comply with any

obligation under any written or implied

warranty...unless the person obligated under the

warranty...is afforded a reasonable opportunity to cure

such failure to comply.” 15 U.S.C. § 2310(e). Here, the

Seventh Circuit’s holding creates a conflict between

circuit courts as to what constitutes a “reasonable

opportunity to cure” under the MMWA. This Court

should resolve the circuit court split to create

uniformity for warrantors and consumers nationwide

in the application of the federal warranty law.

On one hand, in Temple v. Fleetwood Enters., the

Sixth Circuit held that a minimum number of two (2)

repair opportunities must be provided to a warrantor

16

under the MMWA. Temple v. Fleetwood Enters., 133

Fed. Appx. 254, 268 (6th Cir. 2005). In Temple, the

consumer plaintiffs purchased a 1998 Fleetwood Class

A RV. The RV was warranted for 1 year by Fleetwood

and the engine was warranted for 7 years / 150,000

miles by Cummins. Temple, at 256-257. The Temples

presented the RV to a Fleetwood authorized dealership

for warranty repairs on two occasions, and presented

the RV to a Cummins authorized dealership for

warranty repairs on six occasions. Temple, at 257-259.

There were never more than two (2) repairs to any one

defect or nonconformity. Temple, at 256-255, 269. And,

there was no evidence that any of the defects remained

unrepaired. Temple, at 269-270. The Sixth Circuit held

that, in determining whether a warrantor is given a

“reasonable opportunity to cure”, the MMWA requires

that the warrantor be given at least two (2) chances to

repair an alleged defect. Temple, at 268-269. And,

because there were never more than two (2) repairs to

any one defect or nonconformity, and there was no

evidence that any of the defects remained unrepaired,

the Sixth Circuit affirmed the district court’s grant of

summary judgment for the defendants on the plaintiffs’

MMWA claim. Temple, at 269-270.

On the other hand, in the court below, the Seventh

Circuit held that a minimum number of three (3) repair

opportunities must be provided to a warrantor under

the MMWA. (App. 8-9). The Seventh Circuit reserved

judgment as to whether a “reasonable opportunity to

cure” would require three (3) repair attempts where the

defect is a major defect that made the RV unusable.

(App. 8).

17

Aside from the Sixth and Seventh Circuits, no other

Circuit Court has defined “reasonable opportunity to

cure” using a numerical minimum number. This is not

surprising since the MMWA itself does not define

“reasonable opportunity to cure” as a quantitative

number. See 15 U.S.C. § 2310(e). Certainly, if Congress

had intended “reasonable opportunity to cure” under

the MMWA to be a specific minimum number of repair

attempts or opportunities, Congress could have

included that number in the statutory language of the

MMWA itself. Instead, Congress chose to use the

general phrase “reasonable opportunity”. 15 U.S.C.

§ 2310(e). And, where a statute does not include a

specific number of repair attempts, the question of

reasonableness of repairs should be one for a jury. See

Venezia v. Bentley Motors, Inc., 374 Fed. Appx. 765, 767

(9th Cir. 2010).

Had this case been heard in the Sixth Circuit, the

facts would have yielded a different result, since the

first two repair attempts alone were refused by both

DRV and its authorized dealer Bradley. And, had

Zylstra been heard in any other circuit where a

numerical minimum number of repair opportunities is

not required, the result would have been drastically

different. In fact, in those circuits, the 230 days out of

service between March 6, 2017 and January 26, 2018,

the fact that the RV was riddled with 38 different

defects, the six (6) different attempts to obtain

warranty repairs, and the three (3) different warranty

repair refusals would have been considered by the

circuit court in determining whether the Zylstras

provided DRV with a “reasonable opportunity to cure”.

18

The conflict is not going away, and has a very real

world impact on both consumers and warrantors, such

as RV manufacturers. RV sales are at an all time high,

with the Recreational Vehicle Industry Association

(“RVIA”) reporting 430,412 RVs sold in 2020,3 and

projecting the numbers to increase to 577,200 by the

end of 2021 and 600,200 in 2022.4 With the average

MSRP for an RV at $95,301,5 it is not surprising that

one RV manufacturer is reporting sales figures already

in excess of 12 billion for 2021 alone.6 A large

percentage of RVs are manufactured in Indiana,7 and

many RV limited warranties already require that any

dispute regarding the limited warranty be filed in the

state of manufacture– Indiana. See e.g. Shearer v.

3

RVIA, December 2020 Market Report, Wholesale Recreation

Vehicle Shipments,

https://www.rvia.org/system/files/media/file/December%202020

%20Market%20Report.pdf.

4

RVIA, RV RoadSigns Quarterly Forecast,

https://www.rvia.org/rv-roadsigns-quarterly-forecast (Last visited

Oct. 26, 2021).

5

LENDINGTREE, Average RV Cost – and What Else to Know About

Buying and Owning an RV,

https://www.lendingtree.com/auto/rv/cost-of-owning-an-rv/

(last updated Mar. 1, 2021).

6

Press Release, Thor Industries, Inc., Thor Indus. Reports Record

Fiscal 2021 Results as Net Sales Top $12.3 With Earnings Per

Share of $11.85 (September 28, 2021) (on file with author).

7

J.L. Seto, Why Are So Many RVs Made in Indiana,

MOTORBISCUIT (November 23, 2020),

https://www.motorbiscuit.com/why-are-so-many-rvs-made-in-ind

iana/.

19

Thor Motor Coach, 470 F. Supp. 3d 874, 879 (N.D. Ind.

2020). Should the conflict not be resolved by the Court,

forum shopping would inevitably result. RV

manufacturers from California, Florida, Iowa, New

Hampshire, Oklahoma, Ohio, Pennsylvania, Texas,

Virginia, and elsewhere would be held to a different

standard than RV manufacturers from Indiana.

Consumer warranty rights would depend, in large part,

on where their particular RV was manufactured. And,

since uniformity in warranty disclosures was a

congressional objective in enacting the MMWA,

uniformity in consumer warranty rights would

certainly be consistent with that objective. See

Cunningham v. Fleetwood Homes of Ga., 253 F.3d 611,

623 (11th Cir. 2001)(citing 40 Fed. Reg. 60,168, 60,170

(Dec. 31, 1975)).

Therefore, this Court should resolve the circuit split

on what constitutes a “reasonable opportunity to cure”

under the MMWA, and clarify that the issue is a factintensive and case-specific one that should be left to a

jury.

II. This Court should settle what constitutes a

“reasonable opportunity to cure” under the

Magnuson-Moss Warranty Act

A nationwide answer to the important question of

what constitutes a “reasonable opportunity to cure”

under the MMWA is needed, now. A nationwide answer

is consistent with the purpose of the Act, would resolve

practical and recurring problems, would provide

uniformity to both warrantors and consumers alike,

and will prevent circuit courts from impeding the

effectiveness of the MMWA.

20

A. A nationwide answer would further the

purpose of the Magnuson-Moss

Warranty Act

First, providing a nationwide answer to the

important question of what constitutes a “reasonable

opportunity to cure” under the Act would further the

purpose of the MMWA.

The stated purpose of the MMWA is “to improve the

adequacy of information available to consumers,

prevent deception, and improve competition in the

marketing of consumer products”. 15 U.S.C. § 2302(a).

As outlined above, Congress also passed the MMWA to

create additional remedies for consumers for breach of

warranty, to enhance consumer protection, to provide

consumers with an economically feasible private right

of action, and to address the unequal bargaining power

between warrantors and consumers.

Thus, the clear purpose of the MMWA was to

enhance consumer warranty rights and remedies. And,

providing a nationwide answer as to what constitutes

a “reasonable opportunity to cure” under the MMWA

would do just that.

B. A nationwide answer would make

warranties enforceable in the Seventh

Circuit

Second, the issue is recurring, and as a practical

matter, makes warranties nearly impossible for

consumers to enforce in the Seventh Circuit.

This decision makes warranties nearly impossible

for consumers to enforce in the Seventh Circuit, and is

21

especially egregious for RV consumers. Most RV

limited warranties are just a short 1 year in duration.8

But, many times RV repairs can take months to

complete.9 Worse yet, many RV warranties contain

“back up remedies” that a consumer is also required to

exhaust before filing suit, along with clauses

shortening the consumer’s statute of limitations and

requiring suit to be filed in Indiana. See e.g. Mathews

v. REV Rec. Grp., Inc., 931 F.3d 619, 622 (7th Cir.

2019); Shearer v. Thor Motor Coach, 470 F. Supp. 3d

874, 879 (N.D. Ind. 2020). Practically speaking, these

factors all make it nearly impossible for many RV

consumers to enforce their warranty rights in the

Seventh Circuit under the lower court’s decision. For

instance, where an RV is riddled with defects which

cause it to be in the shop for repairs for the entire

warranty period, the consumer would be left without

any warranty rights or remedies under the MMWA in

the Sixth Circuit and Seventh Circuit. Similarly, an RV

may be riddled with defects and in and out and

immediately back in the repair shop for warranty

repairs, yet due to scheduling and repair delays, it may

still be impossible for the consumer to effectively

present the RV for repair at least three (3) times for

8

See Ray Roman, RV Warranties-Over 90 RV Manufacturers

Warranty Information,GO TRAVEL TRAILERS,

https://gotraveltrailers.com/rv-warranties/

(last updated September 18, 2021).

9

Jason & Rae Miller, Why Does RV Warranty Work Take So Long?,

GETAWAY COUPLE, (July 25, 2020),

https://www.getawaycouple.com/why-does-rv-warranty-work-ta

ke-so-long/.

22

each defect during the short 1 year warranty period.

This would leave a consumer without any warranty

rights or remedies under the MMWA in the Seventh

Circuit.

This issue is also recurring. As outlined above, RV

sales are at an all time high, and RVing is becoming a

way of life for many consumers. This increase in sales

has also resulted in an increase in warranty disputes.

In fact, reference to Pacer reveals that there were a

total of at least 119 breach of warranty cases filed by

consumers against RV manufacturers in 2016, 170 in

2017, 179 in 2018, 215 in 2019, 195 in 2020, and 180 in

2021 so far, putting it on track with recent years. The

flux of RV warranty lawsuits is noticeable in the

Northern District of Indiana, were only 27 suits were

filed in 2016 but 81 suits were filed in 2020. And,

approximately 74 suits have been filed to date in 2021.

See also Martin v. Thor Motor Coach Inc., 2021 U.S.

Dist. LEXIS 186781, *14 (N.D. Ind. 2021)(noting

breach of warranty issues in RV cases likely to

reoccur). In other words, this issue is not going away.

And, it makes this case the perfect vehicle for this

Court to use in order to provide a nationwide answer to

the important question of what constitutes a

“reasonable opportunity to cure” under the MMWA.

C. A nationwide answer would provide

uniformity for both warrantors and

consumers

Third, providing a nationwide answer to the

important question of what constitutes a “reasonable

opportunity to cure” under the MMWA would provide

uniformity to both warrantors and consumers alike. RV

23

manufacturers could more readily assess their risks,

and consumers could better assess their warranty

rights, without regard for where the RV was built. And,

RV manufacturers would have the same “reasonable

opportunity to cure” and corresponding duty to repair

regardless of where the RV was manufactured.

D. A nationwide answer would prevent

circuit courts from rewriting the

Magnuson-Moss Warranty Act

Fourth, providing a nationwide answer to the

important question of what constitutes a “reasonable

opportunity to cure” under the MMWA would prevent

circuit courts, like the Seventh Circuit, from impeding

the effectiveness of and essentially rewriting the

MMWA. Here, the Seventh Circuit has essentially

rewritten 15 U.S.C. § 2310(e) of the MMWA, by taking

the phrase “reasonable opportunity to cure” and

replacing it with the phrase “three repair attempts to

cure”. The Seventh Circuit disregards time out of

service even though it is a basis for a breach of

warranty under state law. However, pursuant to

Article I of the United States Constitution, it is the

Congress that is responsible for creating the laws– not

the courts. U.S.C.S. Const. Art. I, § 1. While the courts

are responsible for interpreting and applying the laws,

the Seventh Circuit’s decision goes well beyond simple

interpretation of 15 U.S.C. § 2310(e). See Kisor v.

Wilkie, 139 S. Ct. 2400, 2437 (2019).

24

III.

This

Court

Should

Protect

A

Consumer’s Right To Have A Jury

Decide Factual Disputes Under The

Accepted And Normal Course of

Judicial Proceedings

The court below departed from the accepted and

normal course of judicial proceedings when it usurped

legislative authority by defining as a matter of law that

a minimum of three (3) repair attempts must be

provided to maintain a claim under MMWA. In

addition to acting as the legislature, the Seventh

Circuit also deprived the Zylstras of a jury trial to

factually determine whether they provided the DRV

with a “reasonable opportunity to cure” the RV’s

defects.

A. The Seventh Circuit Departed from

Accepted Judicial Proceedings When It

Defined What Constitutes A Reasonable

Opportunity to Cure

The Seventh Circuit departed from the accepted and

normal course of judicial proceedings when it

improperly exercised legislative powers and departed

from its long-standing precedent when it numerically

defined what constitutes a “reasonable opportunity to

cure”.

The Seventh Circuit has a history of holding that a

determination of what constitutes “reasonable” is a

question of fact. Metavante Corp. v. Emigrant Sav.

Bank, 619 F.3d 748, 763 (7th Cir. 2010)(interpretation

of "commercially reasonable" contract language is

question of fact); Learning Curve Toys, Inc. v.

25

PlayWood Toys, Inc., 342 F.3d 714, 725 (7th Cir.

2003)(whether a trade secret owner’s are reasonable is

a question of fact); Smith v. Great Am. Restaurants,

Inc., 969 F.2d 430, 439 (7th Cir. 1992)(plaintiff's

common law obligation of “reasonable” mitigation of

damages is question of fact); Smith v. Rowe, 761 F.2d

360, 367 (7th Cir. 1985)(plaintiff’s obligation of

“reasonable” mitigation of damages is a question of

fact); Ramos v. Haig, 716 F.2d 471, 474 (7th Cir.

1983)(whether the governmental action is reasonable

is a question of fact).

Despite this long-standing precedent, the Seventh

Circuit did not hold that there was a question of fact as

to whether the Zylstras provided DRV with a

reasonable opportunity to cure the RV’s defects.

Instead, the court below departed from the accepted

and normal course of judicial proceedings when it

defined that a consumer must provide the RV

manufacturer with a minimum of three (3) repair

opportunities for each defect as a matter of law in order

to maintain a claim under MMWA regardless of the

nature of the defects, days out of service, or

surrounding circumstances.

Further, the MMWA is typically an RV consumer's

only recourse for a breach of warranty, since most state

lemon laws do not cover recreational vehicles, and the

MMWA allows consumers to recover costs and expenses

in a dispute. See 15 U.S.C. § 2310(d)(1); see e.g. Ind.

Code §24-5-13-5; Ohio Rev. Code Ann. § 1345.71(D);

Iowa Code §322G.2(13); Cal. Civ. Code § 1793.22(e);

Ala. Code § 8-20A1(1). Yet, the Seventh Circuit

attempted to rewrite the MMWA by applying one

26

lemon law presumption standard and not another,

without regard for an RV’s unique nature (i.e. a custom

built house on wheels). Thus, the court below

improperly exercised legislative authority when it

numerically defined what constitutes a “reasonable

opportunity to cure”.

B. The Seventh Circuit Departed from

Accepted Judicial Proceedings When It

Decided Material Factual Disputes

The Seventh Circuit departed from the accepted and

normal course of judicial proceedings when it

misapplied the Rule 56 standard, made factual

determinations, and effectively placed a heightened

standard on the Zylstras. As a result, the Zylstras were

deprived of their right to a jury trial.

It is well-established that the court shall grant

summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. Fed.

Rule Civ. Proc. 56(e); First National Bank of Arizona v.

Cities Service Co., 391 U.S. 253, 288-289 (1968). Any

inferences to be drawn from the underlying facts must

be viewed in the light most favorable to the party

opposing the motion. United States v. Diebold, Inc., 369

U.S. 654, 655 (1962).

The Seventh Circuit correctly recited the summary

judgment standard in its decision. (App. 5-6). However,

in order to reach its decision, the Court engaged in factfinding when determining whether the Zylstras

presented DRV and its authorized dealers with a

reasonable opportunity to cure the RV’s defects. See

27

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S. Ct. 2505, 2511 (1986)(“[A]t the summary judgment

stage the judge's function is not himself to weigh the

evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.”).

As detailed below, the Court made at least three (3)

critical factual determinations.

i. The Court engaged in fact-finding

when it determined that DRV and its

authorized dealer’s refusals to

perform warranty repairs were

immaterial

First, the Court engaged in fact-finding when it

determined that DRV and its authorized dealer’s

refusals to perform warranty repairs were immaterial

and completely disregarded such evidence.

Under the MMWA, the consumer is required to

provide the RV manufacturer with a “reasonable

opportunity to cure” the RV’s defects. Thus, evidence

showing that the Zylstras complied with their

obligation to provide DRV and/or its authorized dealers

with a “reasonable opportunity to cure” is undeniably

a material issue to a breach of warranty and MMWA

claim. Further, there was a genuine dispute as to

whether the Zylstras complied with their obligation to

provide DRV and its authorized dealers with a

reasonable opportunity to cure the RV’s defects given

that DRV and its authorized dealer refused to repair

the RV’s warrantable defects.

During the Second Post-Sale Repair Attempt, the

Zylstras reported several defects to Bradley. Aff.

28

Zylstra, ¶10-12 (Ex 2; Doc 28-3; Appx. P28). Bradley

then reported the defects to DRV and requested

warranty authorization on May 3, 2017. Warranty

Claims, pg 138 (Ex 8, Doc 28-9). A dispute then arose

between the Zylstras and Bradley regarding the RV’s

roof damage. Aff. Zylstra, ¶13-16 (Ex 2; Doc 28-3; Appx.

P28). When the Zylstras informed Bradley that DRV

was going to repair the RV’s roof damage at its factory

at a cheaper price than quoted by Bradley, Bradley

then refused to perform the requested warranty repairs

for which it had already submitted authorization. Id, at

¶16. When scheduling the roof repair with DRV, the

Zylstras requested that DRV also repair the list of 17

defects they had already provided to Bradley. Id. DRV

refused. Id. There is no evidence that DRV offered an

alternative repair date to accommodate the request for

warranty repairs. Id.

Thus, the Zylstras presented evidence that they

attempted to provide DRV and its authorized dealers

with six (6) opportunities to repair the RV’s defects. On

at least two (2) occasions, the Zylstras reported the

RV’s defects and requested warranty repairs, but DRV

and its authorized dealer Bradley refused to repair the

RV’s warrantable defects. Aff. Zylstra, ¶16 (Ex 2; Doc

28-3; Appx. P28). However, the Court completely

ignored this evidence. This had a trickle down effect in

that the Court then determined that the defects were

not presented multiple times, which lead to its ultimate

conclusion that the Zylstras did not provide DRV with

a reasonable opportunity to cure the RV’s defects.

A consumer can only provide an opportunity to

repair – report defects and request that an RV

29

manufacturer and/or its authorized dealers repair the

defects. A consumer cannot force an RV manufacturer

or its authorized dealers to take advantage of the

opportunity and actually perform the repairs. Whether

an RV manufacturer or its authorized dealers refuse to

perform warranty repairs is material issue to a factfinder tasked with deciding whether the RV

manufacturer breached its warranty.

In viewing the warranty refusals in a light most

favorable to the Zylstras, a rational trier of fact could

find that the Zylstras complied with their obligation to

provide DRV with a reasonable opportunity to cure by

reporting the defects and requesting warranty repairs,

and that DRV breached its warranty when it and its

authorized dealer refused to repair the RV’s

warrantable defects. See First National Bank of

Arizona v. Cities Service Co., 391 U.S. 253, 289

(1968)(“Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving

party, there is no ‘genuine issue for trial.’”). As such,

the Court misapplied the Rule 56 standard.

ii. The Court engaged in fact-finding

when it determined whether the

Zylstras presented DRV with a

reasonable opportunity to repair the

RV’s Black Holding Tank Leak

Second, the Court engaged in fact-finding in

determining whether the Zylstras presented DRV with

a reasonable opportunity to cure the RV’s Black

Holding Tank Leak. The Court held that the Zylstras

failed to provide DRV with a reasonable opportunity to

cure the RV’s Black Holding Tank Leak, finding the

30

Zylstras only presented the Black Holding Tank Leak

defects one time during the Fifth Post-Sale Repair

Attempt. (App. 11-15). The Zylstras presented

evidence, through Mr. Zylstra’s affidavit, that DRV

represented that the sewage clean up would not be

covered under the DRV warranty. Aff. Zylstra, ¶25 (Ex

2; Doc 28-3; Appx. P28). The Seventh Circuit found

that Mr. Zylstra’s affidavit testimony was not credible,

stating that it conflicted with his deposition testimony.

(App. 14-15).

In order to reach this conclusion, the Court

erroneously made a credibility determination regarding

Mr. Zylstra’s testimony since Mr. Zylstra’s deposition

and affidavit testimony do not conflict. In the portion of

the deposition testimony cited by the Court, Mr.

Zylstra was asked whether DRV indicated it wasn’t

willing to clean up the sewage. (App. 13). Mr. Zylstra

responded that he did not recall DRV indicating they

weren’t willing to clean up the sewage leak, but said

they couldn’t guarantee it wouldn’t be a biohazard.

(App. 13). In contrast, in his affidavit, Mr. Zylstra

states that DRV indicated that the clean up would not

be covered under the warranty. Aff. Zylstra, ¶25 (Ex 2;

Doc 28-3; Appx. P28). This testimony goes to the issue

of whether DRV or the Zylstras were responsible for

paying for the sewage clean up; not whether DRV was

willing or not willing to clean up the sewage (for a fee).

The Zylstras also presented evidence that they

provided DRV with at least two (2) opportunities to

repair the Black Holding Tank Leak (i.e. Fifth PostSale Repair Attempt and Sixth Post-Sale Repair

Attempt). Id, at ¶22-25; Plaza RV Repair Order #2 (Ex

31

11; Doc 28-12). Although DRV refused to repair the

Black Holding Tank Leak clean up under its warranty,

in viewing the warranty refusals in a light most

favorable to the Zylstras, a rational trier of fact could

find that the Zylstras complied with their obligation to

provide DRV with a reasonable opportunity to cure the

Black Holding Tank Leak defect. Cities Service Co., 391

U.S. at 289. Thus, the Court erroneously engaged in

fact-finding and misapplied the Rule 56 standard when

it determined that the Zylstras request that DRV

repair the Black Holding Tank Leak was immaterial,

and did not count as a repair opportunity.

iii.

The Court engaged in fact-finding

in determining how many days

the RV was out of service by

reason of repair

Third, the Court engaged in fact-finding in

determining how many days the RV was out of service

by reason of repair. Under the MMWA and Indiana

law, a manufacturer breaches its warranty when it

fails to repair defects within either a reasonable

number of repair attempts or within a reasonable

amount of time. Peterson v. Culver Educational

Foundation, 402 N.E.2d 448, 461 (Ind. App. 1980); 15

U.S.C. § 2310(d)(1). Thus, evidence relating to the

amount of time the RV was out of service is a material

issue in a breach of warranty and MMWA claim.

In holding that the RV was not out of service an

unreasonable amount of time as a matter of law, the

Seventh Circuit weighed the evidence and made

numerous factual findings as to each time the RV was

out of service:

32

During the First Post-Sale Repair Attempt, the

Court found that the 53 days out of service did not

count because the Zylstras did not themselves report

the defects. (App. 17-18). However, DRV’s obligation is

to repair warrantable defects that it is put on notice of

existing defects. DRV’s obligation to repair warrantable

defects does not rise or fall depending on who reported

the defect.

During the Second Post-Sale Repair Attempt, the

Court found that the Zylstras did not inform DRV that

Bradley was unwilling to perform the warranty repairs,

and thus, found that the 22 days out of service did not

count. (App. 18-19). However, the Zylstras presented

evidence that they had spoken to DRV about the

dealership’s warranty repair refusal. Aff. Zylstra, ¶16

(Ex 2; Doc 28-3; Appx. P28).

During the Third Post-Sale Repair Attempt, the

Court found that the four days out of service did not

count even though the Zylstras presented evidence of

DRV’s warranty repair refusal. (App. 19-20). The Court

also found that the Zylstras “showed up” on DRV’s

doorstep. However, the Zylstras presented evidence

that the service appointment at the DRV factory on

June 21, 2017 was made in May 2017, meaning the

Zylstras gave DRV nearly a month’s notice. Id.

During the Fourth Post-Sale Repair Attempt, the

Court found that the 52 days out of service did not

count because the Zylstras knew the dealership was

short-handed and agreed to such and that nonwarranty work was performed. (App. 20). However, the

Zylstras presented evidence that the non-warranty

work amounted to the installation of a sewage drain

33

coupling (i.e. one job on a list of 18). Plaza RV Repair

Order #1 (Ex 10; Doc 28-11). Further, the Zylstras

willingness to leave the RV for warranty repairs is

completely irrelevant to the issue of whether DRV had

a reasonable opportunity to repair the RV’s remaining

17 defects, and failed to do so within a reasonable

amount of time.

During the Fifth Post-Sale Repair Attempt, the

Court found that the 102 days out of service did not

count, finding Plaza RV performed non-warranty

repairs and the Zylstras agreed to the time out of

service. (App. 21-22). However, the Zystras presented

evidence that they were unhappy with the repair delay

in mid-October. Letter to Heartland (Ex 16; Doc 28-17).

After weighing the letter’s credibility and deciding

whether it felt the Zylstras would have used the RV,

the Court found the letter was unpersuasive. (App. 21).

Further, the Zylstras presented evidence that the nonwarranty work amounted to the installation of the

entry steps (i.e. one job on a list of 16). Plaza RV Repair

Order #2 (Ex 11; Doc 28-12).

There was a genuine dispute of a material issue

since the parties disputed the days out of service. The

Zylstras met their burden to produce evidence of a

genuine dispute since the evidence does not

unmistakably favor DRV. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512

(1986). Instead of viewing the 230 days out of service in

a light most favorable to the Zylstras, the Court

combed through the evidence and found none of the 230

days counted towards the breach of warranty and

MMWA claims. See First Nat. Bank of Ariz. v. Cities

34

Service Co., 391 U. S. 253, 289, 88 S. Ct. 1575, 20 L.

Ed. 2d 569 (1968)(the question at summary judgment

is whether a jury should “resolve the parties’ differing

versions of the truth at trial”). The fact finder could

certainly find that all, some, or none of the time out of

service counted towards the breach of warranty and

MMWA claims. However, that was for the jury to

decide – not the Court. As such, the Court misapplied

the Rule 56 standard.

iv.

The Court departed from accepted

judicial proceedings by misapply

the Rule 56 standard

By misapplying the Rule 56 standard, the Court

effectively placed a heightened burden on the Zylstras

to establish that a genuine dispute exists by

conclusively establishing disputed facts in their favor,

as opposed to determining whether genuine issues of

material fact exist. The Court noted that there are

disputed facts, yet held that the “disputed facts are not

material”. (App. 5).

“The issue of material fact required by Rule 56(c) to

be present to entitle a party to proceed to trial is not

required to be resolved conclusively in favor of the

party asserting its existence; rather, all that is

required is that sufficient evidence supporting the

claimed factual dispute be shown to require a jury or

judge to resolve the parties' differing versions of the

truth at trial.” Cities Service Co., 391 U.S. at 288-289.

In other words, the Zylstras were required to present

evidence that genuine disputes of material facts exist.

It is a burden of production – not persuasion. The

Zylstras did that as evidenced by the extensive record.

35

The Court twice acknowledged the fact-intensive

nature of the parties’ dispute. Zylstra, at 601, 608 (App.

5, 17). And, whether the Zylstras provided DRV with a

reasonable opportunity to cure the RV’s defects is

certainly a material issue since it is an element of a

MMWA claim.

Since the issue of whether the Zylstras provided

DRV with a reasonable opportunity to cure the RV’s

defects is material and the Seventh Circuit

acknowledged that there are disputed facts, the effect

of the decision was to shift the burden to the Zylstras

to conclusively prove the validity of the genuinely

disputed material facts. See Cities Serv. Co., 391 U.S.

at 288. As a result, the Zylstras were deprived of their

right to a jury trial. Thus, the Court erred in affirming

the district court’s order granting DRV’s motion for

summary judgment.

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari.

Respectfully submitted,

RONALD L. BURDGE

Counsel of Record

ELIZABETH AHERN WELLS

Burdge Law Office Co., LPA

8250 Washington Village Dr.

Dayton, Ohio 45458

937.432.9500 voice

Ron@burdgelaw.com

Counsel for Petitioners