Beverly Zylstra, et vir v. DRV, LLC

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