COMPLAINT –Page 1 of 13

Young Walgenkim OSB# 124900

Hanson & Walgenkim, LLC

838 Commercial St NE

Salem, OR 97301

Tel. (503) 383-1496 || Fax (503) 766-6477

young@hansonwalgenkim.com

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CAROL BENGEL

Plaintiff,

 v.

WITHNELL MOTOR COMPANY, a 

domestic corporation; HYUNDAI 

MOTOR AMERICA CORPORATION, a 

foreign corporation; OREGON 

COMMUNITY CREDIT UNION, a

domestic credit union; FEDERATED

MUTUAL INSURANCE COMPANY, a 

foreign corporation

 

Defendants.

Case No.:3:14-cv-1181

COMPLAINT

Magnuson Moss Warranty Act (15 U.S.C. 

§ 2310), Truth in Lending (15 U.S.C. § 

1640), and State Claims.

DEMAND FOR JURY TRIAL

Plaintiff, by and through her attorney Young Walgenkim, and for her complaint 

alleges:

PARTIES

1. At all relevant times, Plaintiff has resided in Salem, Oregon.

2. At all relevant times, Defendant Withnell Motor Company (“Withnell”) has been an 
COMPLAINT –Page 2 of 13

Oregon Corporation with regular and sustained business activities in Marion

County Oregon.

3. Withnell is a car dealer (Dealer No. DA5873) located at 1996 Mission St SE, Salem, 

OR 97302.

4. At all relevant times, Defendant Hyundai Motor America Corporation (“Hyundai”) 

has been a California Corporation with regular and sustained business activities in 

Oregon.

5. Withnell is a licensed Hyundai dealer, authorized by Hyundai to sell Hyundai 

vehicles on its behalf. As a dealer, Withnell acts as an agent on behalf of Hyundai.

6. At all relevant times, Defendant Oregon Community Credit Union (“OCCU”) has 

been an Oregon credit union with regular and sustained business activities in 

Marion County Oregon.

7. Defendant Federated Mutual Insurance Company (“FMIC”) is the bond company 

for Withnell and Plaintiff has a right of action under ORS 822.030 against FMIC as 

the surety on Withnell’s bond.

JURISDITION AND VENUE

8. Jurisdiction of this court arises under 15 U.S.C. § 2310(d), 15 U.S.C. § 1640(a), 28 

U.S.C. § 1331 (Federal Question), and the doctrine of pendent jurisdiction for the 

other Oregon claims pursuant to 28 U.S.C. § 1367. Plaintiff seeks relief in excess of 

$50,000.00.

9. Venue is proper in this District pursuant to 28 U.S.C. § 1391 (b) and (c), because: (i) 

Defendants are actively doing business in this State and subject to personal 

jurisdiction throughout the State; (ii) Defendants transact business in the State and in 

the District because they have contracted with residents of the District through their 

sales with residents of the District; (iii) Defendants have committed illegal acts in the 

District by through their sales and/or have provided defective products to residents 
COMPLAINT –Page 3 of 13

of this district, and (iv) a substantial part of the events or omissions giving rise to the 

claim occurred in this District.

FACTS

10. Sometime in May of 2012, Plaintiff received a letter in the mail from Withnell. The 

letter stated that Plaintiff qualified for “guaranteed financing” with “no down 

payment” on a new car. 

11. On May 25, 2012, Plaintiff went to Withnell’s lot and purchased a new 2012 Hyundai 

Santa Fe (“Santa Fe”), VIN 5XYZGDAB3CG097574, from Withnell for personal or 

household use. (See Exhibit 1 – Bill of Sale). 

12. Plaintiff is 4'8" tall and was 69 years old at the time of the purchase of the Santa Fe.

13. Plaintiff told Withnell’s salesperson that she was interested in a sport utility vehicle. 

The salesperson promptly showed Plaintiff to a new Hyundai Santa Fe.

14. During the test drive, Plaintiff had difficulty getting in and out of the Santa Fe 

because of her height. Withnell’s salesman pulled the seat forward close enough for 

her to reach the pedals. He also assured Plaintiff that she would have no trouble 

getting in and out of the Santa Fe because he would arrange to install running 

boards for her, free of charge. (See Exhibit 3 – Running Board Installation).

15. During negotiations, Withnell’s salesman asked Plaintiff how much she could pay 

per month. She told him she could afford $500.

16. At the end of the transaction, Plaintiff ended up paying $31,824.00 for the Santa Fe. 

She additionally purchased a platinum package warranty for $3,497.00 and a service 

contract for $899.00. (Exhibit 1 – Bill of Sale). Plaintiff also paid no money down for 

her purchase, even though the Bill of Sale states that she paid $3,814.

17. The manufacturer’s suggested retail price (“MSRP”) for the Santa Fe was $23,225. 

Withnell did not disclose to Plaintiff that she was paying $8,599 over the MSRP.

18. Withnell’s salesperson told Plaintiff she was getting a free 10 year 100,000 mile 
COMPLAINT –Page 4 of 13

warranty. Plaintiff did not know about or consent to purchasing the platinum 

package warranty for $3,497.00.

19. Plaintiff made regular visits to Withnell to get her Santa Fe serviced according to the 

service schedule she was given with the service contract.

20. On or about April16, 2014, Plaintiff discovered in the Santa Fe owner’s manual that 

if the driver sits closer than 10 inches from the steering wheel, she could suffer 

serious injury or death from the deployment of the airbag. Plaintiff had been sitting 

at most 6 inches away from the steering wheel, as recommended by Withnell’s 

salesperson since she purchased the vehicle in May 2012. 

21. On the same day, Plaintiff’s son drove Plaintiff to Withnell’s lot, and Plaintiff and 

her son alerted Withnell’s manager about her safety concerns. The manager came 

out to the vehicle and measured and confirmed Plaintiff was in fact sitting only 6 

inches away from the steering wheel. However, the manager told Plaintiff this was 

not Withnell's problem, and she needed to see her doctor and the DMV.

22. Withnell never disclosed any safety issues related to Plaintiff sitting too close to the 

steering wheel of the Santa Fe. 

23. Since that day, Plaintiff has not driven the Santa Fe in fear for her life. 

FIRST CLAIM FOR RELIEF: MAGNUSON MOSS WARRANTY ACT - 15 U.S.C. 

§ 2310 (All Defendants)

24. Plaintiff is a “consumer" as defined in the Magnuson-Moss Warranty Act 

(“MMWA"), 15 U.S.C. § 2301(3).

25. Withnell and Hyundai are "warrantors" and/or "suppliers" as defined in the 

MMWA, 15 U.S.C. § 2301(4) and (5).

26. The Santa Fe is a "consumer product" as defined in the MMWA, 15 U.S.C. § 2301(l), 

because it is normally used for personal purposes.

/// /// ///
COMPLAINT –Page 5 of 13

27. The written manufacturer’s warranty pertaining to the Santa Fe was given by 

Hyundai and adopted by Withnell. Withnell also sold an additional written 

warranty to Plaintiff.

28. Withnell gave a warranty of fitness for a particular purpose when it represented to 

Plaintiff that the Santa Fe would be a suitable car for someone of her stature. 

29. Plaintiff provided both Withnell and Hyundai an opportunity to cure, and neither 

defendant provided a reasonable offer to cure. 

30. The actions of Withnell and Hyundai in failing to tender the Santa Fe to Plaintiff in 

safe and drivable condition constitutes a breach of the written and implied 

warranties covering the Santa Fe and is a violation of the MMWA for which Plaintiff 

is entitled to recover her damages under 15 U.S.C. § 2310(d)(1) or a full refund under 

15 U.S.C. § 2304(a)(4).

31. Plaintiff has performed all things agreed to and required of her under the purchase

agreement and warranty, except as may have been excused or prevented by the 

conduct of Withnell and Hyundai as herein alleged.

32. Pursuant to the MMWA, 15 U.S.C. § 2310(d)(2), Plaintiff is entitled to recover costs 

and expenses of the suit, including attorney's fees, as part of the judgment. As a 

proximate result of Withnell and Hyundai’s misconduct as alleged herein, Plaintiff 

has incurred and continues to incur legal fees, costs, and expenses in connection 

therewith.

33. The amount in controversy of this action exceeds $50,000, exclusive of interest and 

costs for these claims.

34. As a holder of the note that is a consumer credit contract, OCCU is subject to all 

claims that Plaintiff can assert against the seller in the amount not to exceed 

amounts paid by Plaintiff. Therefore, OCCU is also liable to Plaintiff. (See Exhibit 2 –

Retail Installment Contract, Page 1).
COMPLAINT –Page 6 of 13

35. FMIC is also liable as the bond company for Withnell under ORS 822.030.

SECOND CLAIM FOR RELIEF: TRUTH IN LENDING - 15 USC § 1601 et seq.

(As to All Defendants)

36. Plaintiff re-alleges and incorporates herein all of the above paragraphs.

37. Withnell extended credit to Plaintiff in a written agreement that was subject to a 

finance charge and involved more than four installment payments. (See Exhibit 2 –

Retail Installment Contract).

38. Plaintiff’s use of the credit was for a personal, family, or household purpose.

39. Withnell regularly extends consumer credit.

40. In 2011, Withnell signed more than 25 Retail Installment Contracts where credit was 

extended to the customers for their purchase of vehicles from Withnell. 

41. Withnell misrepresented the amount of down payment on Retail Installment 

Contract for Plaintiff’s purchase of the Santa Fe in order to get Plaintiff approved for 

financing.

42. Withnell failed to comply with the disclosure requirements under the Truth in 

Lending Act (TILA), including but not limited to: 1) the amount financed, 2) the 

finance charge, 3) the annual percentage rate, 4) the total of payments, 5) the 

schedule of payments, and 6) the total sale price, in violation of 15 U.S.C. § 1638. 

43. As a result of Withnell’s violations of the TILA, Plaintiff is entitled to recover actual 

damages and statutory damages of $11,470.96, which is two times the finance 

charge, pursuant to 15 U.S.C. § 1640. 

44. Plaintiff is entitled to her reasonable attorneys’ fees and costs, pursuant to 15 U.S.C. 

§ 1667d and 15 U.S.C. § 1640(a)(3).

Liability of Other Defendants

45. Because Withnell is an authorized agent of Hyundai, Hyundai is jointly and 

severally liable as the principal of the agency relationship.
COMPLAINT –Page 7 of 13

46. As a holder of the note that is a consumer credit contract, OCCU is subject to all 

claims that Plaintiff can assert against the seller in the amount not to exceed 

amounts paid by Plaintiff. Therefore, OCCU is also liable to Plaintiff. (See Exhibit 2 –

Retail Installment Contract, Page 1).

47. Withnell’s violations of the TILA were due to Withnell’s fraudulent representations 

and/or Withnell’s violations of the vehicle code. Plaintiff suffered loss because of 

Withnell’s fraudulent representations and/or Withnell’s violations of the vehicle 

code. Therefore FMIC is jointly and severally liable as the bond company for 

Withnell under ORS 822.030 up to the bond limit.

THIRD CLAIM FOR RELIEF: UNLAWFUL TRADE PRACTICES - ORS § 646.608

(All Defendants)

48. Plaintiff re-alleges and incorporates herein all of the above paragraphs.

Count 1 - ORS 646.608(1)(t); ORS 646.608(1)(u), OAR 137-020-0020(3)(o) – Failure to 

Disclose Material Defects

49. In the course of its business, and concurrent with tender or delivery of the Santa Fe, 

Withnell failed to disclose that the design of the Santa Fe would not allow Plaintiff 

to operate it while sitting a safe distance away from the steering wheel.

50. This defect/non-conformity is material.

51. Plaintiff would not have purchased the Santa Fe had she known that she could not 

safely drive the vehicle.

52. Withnell knew or should have known that Plaintiff could not safely drive the Santa 

Fe.

53. Withnell therefore willfully violated ORS 646.608(1)(t) and OAR 137-020-0020(3)(o), 

which is, in turn, a violation of ORS 646.608(1)(u).

Count 2 - ORS 646.608(1)(u), OAR 137-020-0020(3)(b) – Extension Sticker

54. The offering price for the Santa Fe was $31,824.00. (See Exhibit 1 – Bill of Sale).
COMPLAINT –Page 8 of 13

55. Since the MSRP of the Santa Fe was $23,225, the offering price was $8,599 more than 

the MSRP.

56. Defendant Withnell did not display or disclose the additional mark up of $8,599 on 

any extension sticker.

57. Withnell therefore willfully violated OAR 137-020-0020(3)(b), which is, in turn, a 

violation of ORS 646.608(1)(u).

Count 3 - ORS 646.608(1)(u), OAR 137-020-0020(3)(e) – Additional Dealer Mark-up

58. The difference of $8,599 did not represent additional goods or services. However, 

Withnell did not disclose it was additional dealer mark-up. 

59. Withnell therefore willfully violated OAR 137-020-0020(3)(e), which is in turn, a 

violation of ORS 646.608(1)(u).

Count 4 - ORS 646.608(1)(u), OAR 137-020-0020(3)(m) – Payment Price Packing

60. During negotiations for the sale of the Santa Fe, Withnell quoted a monthly payment 

that included, among other things, the extended warranty, the service contract, and 

the running boards.

61. Withnell did not clearly and conspicuously disclose in writing, prior to Plaintiff 

executing the agreement, the individual price of the included addons and the 

monthly payment and total cost without the additional items included.

62. Withnell therefore willfully violated OAR 137-020-0020(3)(m), which is, in turn, a 

violation of ORS 646.608(1)(u).

Count 5 - ORS 646.608(1)(u), OAR 137-020-0040(2) – Violations of Truth in Lending

63. Withnell extended credit related to the purchase of the Santa Fe in violation of the 

Truth in Lending Act.

64. Withnell therefore willfully violated OAR 137-020-0040(2), which is, in turn, a 

violation of ORS 646.608(1)(u).

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COMPLAINT –Page 9 of 13

Damages

65. As a result of Withnell’s 5 separate violations of the UTPA, Plaintiff suffered actual 

economic damages in the amount of the total sale price of the Santa Fe – $48,228.44. 

Plaintiff is entitled to actual economic damages, reasonable attorneys’ fees, and costs 

pursuant to ORS 646.638.

66. As a result of Withnell’s 5 willful violations of the UTPA, Plaintiff is entitled to 

punitive damages in the amount to be determined by the jury pursuant to ORS 

646.638.

Liability of Other Defendants

67. Because Withnell is an authorized agent of Hyundai, Hyundai is jointly and 

severally liable as the principal of the agency relationship.

68. As a holder of the note that is a consumer credit contract, OCCU is subject to all 

claims that Plaintiff can assert against the seller in the amount not to exceed 

amounts paid by Plaintiff. Therefore, OCCU is also liable to Plaintiff. (See Exhibit 2 –

Retail Installment Contract, Page 1).

69. Withnell’s violations of the UTPA were due to Withnell’s fraudulent representations 

and/or Withnell’s violations of the vehicle code. Plaintiff suffered loss because of 

Withnell’s fraudulent representations and/or Withnell’s violations of the vehicle 

code. Therefore FMIC is jointly and severally liable as the bond company for 

Withnell under ORS 822.030 up to the bond limit.

FOURTH CLAIM FOR RELIEF: FINANCIAL ELDER ABUSE - ORS § 124.110

(As to Defendants Withnell, Hyundai, and FMIC)

70. Plaintiff re-alleges and incorporates herein all of the above paragraphs.

71. At all relevant times, Plaintiff has been a “vulnerable person” as defined by ORS 

124.100(1)(e) because she was over the age of 65 at the time of her purchase of the 

Santa Fe from Withnell.
COMPLAINT –Page 10 of 13

72. Withnell, Hyundai, and FMIC are not “financial institutions” as defined by ORS 

706.008.

73. Withnell, Hyundai, and FMIC are not “health care facilities” as defined in ORS 

442.015.

74. Withnell, Hyundai, and FMIC are not facilities licensed or registered under ORS 

chapter 443.

75. Withnell, Hyundai, and FPIC are not “broker-dealers” licensed under ORS 59.005 to 

59.541.

76. Withnell wrongfully appropriated Plaintiff’s money or property through the 

following statutory violations:

a. Failure to honor warranty in violation of the MMWA (15 U.S.C. § 2310);

b. Misrepresentation of financing disclosures in violation of the TILA (15 USC § 

1601);

c. Misrepresentation of benefits and qualities of good sold in violation of the 

UTPA (ORS § 646.608);

d. Failure to disclose material defects in violation of the UTPA (ORS § 646.608);

e. False representations regarding goods sold in violation of the UTPA (ORS § 

646.608);

f. Misrepresentation of offering price in violation of the UTPA (ORS § 646.608); 

and

g. “Payment Price Packing” or failure to disclose hidden add-on prices in 

violation of the UTPA (ORS § 646.608).

77. Plaintiff suffers chronic kidney disease and is diagnosed as having-bi-polar disorder. 

The stress related to potential death from airbag deployment and other issues 

arising out of the sale of the Santa Fe have greatly exacerbated both conditions.

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COMPLAINT –Page 11 of 13

78. Due to the above violations, Plaintiff has suffered economic damages of $48,228.44, 

and is entitled to three times that amount ($144,685.32) pursuant to ORS 

124.100(2)(a).

79. Due to the above violations, Plaintiff has suffered fear, anxiety, nervousness, anger, 

depression, embarrassment, humiliation, frustration and emotional distress. Plaintiff 

is entitled to three times her noneconomic damages in the exact amount to be 

determined by jury pursuant to ORS 124.100(2)(b).

80. Plaintiff is entitled to reasonable attorneys’ fees pursuant to ORS 124.100(2)(c). 

81. Withnell and FMIC are jointly and severally liable for these damages pursuant to 

ORS 822.030 and the DMV-required bond. 

Liability of Hyundai and FMIC

82. Because Withnell is an authorized agent of Hyundai, Hyundai is jointly and 

severally liable as the principal of the agency relationship.

83. Withnell’s financial elder abuse was due to Withnell’s fraudulent representations 

and/or Withnell’s violations of the vehicle code. Plaintiff suffered loss because of 

Withnell’s fraudulent representations and/or Withnell’s violations of the vehicle 

code. Therefore FMIC is jointly and severally liable as the bond company for 

Withnell under ORS 822.030 up to the bond limit.

FIFTH CLAIM FOR RELIEF: NEGLIGENCE

(As to Defendant Hyundai)

84. Plaintiff re-alleges and incorporates herein all of the above paragraphs.

85. Hyundai owed a duty to Plaintiff in providing safety information to its dealers in 

selling Hyundai vehicles to customers who are too short to sit a safe distance away 

from the steering wheel. 

86. Hyundai did not exercise reasonable care by failing to provide adequate training 

and safety information to Withnell who sold the Santa Fe to Plaintiff without 
COMPLAINT –Page 12 of 13

disclosing adequate safety information to Plaintiff. 

87. A reasonable business in Hyundai’s position would know that failing to provide 

such safety information to its dealers would result in harm to a reasonable customer.

88. Plaintiff suffered damage that was caused by, and foreseeable to, Hyundai.

89. As a result of Hyundai’s negligent conduct, Plaintiff suffered economic damages of 

$48,228.44. 

JURY DEMAND

90. Plaintiff demands trial by jury

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays judgment be entered against all Defendants for:

FIRST CLAIM FOR RELIEF: MAGNUSON MOSS WARRANTY ACT - 15 U.S.C. § 2310:

a) An order declaring that Withnell and Hyundai violated the MMWA;

b) An award of actual damages in the amount to be determined by the jury;

c) 11% pre-judgment interest;

d) An award of reasonable attorneys’ fees and costs; and 

e) Any and all other relief the court deems just and equitable.

SECOND CLAIM FOR RELIEF: TRUTH IN LENDING - 15 USC § 1601:

a) An order declaring that Withnell violated the Truth in Lending Act;

b) An award of statutory damages of $11,470.96, two times the finance charge;

c) An award of actual damages in the amount to be determined by the jury;

d) 11% pre-judgment interest;

e) An award of reasonable attorneys’ fees and costs; and 

f) Any and all other relief the court deems just and equitable.

THIRD CLAIM FOR RELIEF: UNLAWFUL TRADE PRACTICES - ORS § 646.608:

a) An order declaring that Withnell violated the UTPA;

b) An award of actual damages in the amount to be determined by the jury;
COMPLAINT –Page 13 of 13

c) An award of punitive damages in the amount to be determined by the jury;

d) 11% pre-judgment interest;

e) An award of reasonable attorneys’ fees and costs; and 

f) Any and all other relief the court deems just and equitable.

Plaintiff prays judgment be entered against Withnell, Hyundai, and FMIC for:

FOURTH CLAIM FOR RELIEF: FINANCIAL ELDER ABUSE - ORS § 124.110:

a) An award of three times all economic damages in the amount of $144,685.32;

b) An award of three times all noneconomic damages in the amount to be 

determined by the jury;

c) 11% pre-judgment interest;

d) An award of reasonable attorneys’ fees and costs; and 

e) Any and all other relief the court deems just and equitable.

Plaintiff prays judgment be entered against Hyundai for:

FIFTH CLAIM FOR RELIEF: NEGLIGENCE:

a) An award of economic damages of $48,228.44;

b) 11% pre-judgment interest; and

c) Any and all other relief the court deems just and equitable.

DATED: July 24, 2014

/s/ Young Walgenkim

Young Walgenkim OSB# 124900

Hanson & Walgenkim, LLC

838 Commercial St NE, Salem, OR 97301

Tel. (503) 383-1496 || Fax (503) 766-6477

young@hansonwalgenkim.com

Attorney for Plaintiff