Exhibit 17 - Plaintiffs' Proposed Trial Plan — Marshall v. Prestamos CDFI, LLC (Dkt. 139-18, E.D. Pa. No. 5:21-cv-04337)

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U.S. District Court for the Eastern District of Pennsylvania · No. 5:21-cv-04337-JMG · Doc. 139-18 · 2024-09-06 · Docket on CourtListener

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EX. 17 -- PLAINTIFFS’ PROPOSED TRIAL PLAN 
Case 5:21-cv-04337-JMG     Document 139-18     Filed 09/06/24     Page 1 of 9

Marshall, et al. v. Prestamos CDFI, LLC,  
No. 5:21-cv-04337-JMG (E.D. Pa) 
 
Plaintiffs’ Proposed Trial Plan 
 
This Proposed Trial Plan identifies the core issues, claims and defenses that Plaintiffs1 
presently believe will be presented at trial, and demonstrates that they are susceptible to 
classwide proof. See Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (requiring 
plaintiff to show that “’the same evidence will suffice for each member to make a prima facie 
showing [or] the issue is susceptible to generalized, classwide proof’”) (citation omitted)). “[T]he 
Third Circuit has encouraged district courts to use trial plans submitted by the proponent of class 
certification.” Brooks v. Trans Union LLC, 2024 WL 3625142, at *21 (E.D. Pa. Aug. 1, 2024), 
citing Wachtel ex rel. Jesse v. Guardian Life Ins. Co., 453 F.3d 179, 188 n.7 (3d Cir. 2006)). See 
also Fed. R. Civ. P. 23 Advisory Committee Notes (2003) (“A critical need is to determine how 
the case will be tried. An increasing number of courts require a party requesting class 
certification to present a ‘trial plan’ that describes the issues likely to be presented at trial and 
tests whether they are susceptible of classwide proof.”).  
 
Plaintiffs submit this Proposed Trial Plan as part of their motion for class certification, 
and do so per the schedule set forth in the Court’s Amended Scheduling Order, prior to the close 
of merits discovery. ECF No. 123 at ¶ 1(d). See also ECF No. 102 at ¶ 2 (“Discovery in this 
proposed class action case will proceed in two phases: (1) initially on the Rule 23 class 
certification; and (2) all merits discovery necessary for trial and motions for summary 
judgment.”). Plaintiffs reserve the right to supplement and amend this Proposed Trial Plan prior 
to trial, including as to any issues that arise in ongoing discovery, summary judgment, any 
changes in the law or as the Court may otherwise direct or permit.   
 
I. 
Background 
 
Plaintiffs allege that defendant Prestamos failed to fund SBA-approved PPP loans of 
Plaintiffs and class members and falsely reported to the SBA that the loans were funded. 
Plaintiffs were approved by the SBA for their PPP loans and given SBA loan numbers; entered 
into and returned to Prestamos the standard form Loan Document contracts and all requisite loan 
documentation; did not receive their PPP loans although Prestamos falsely reported to the SBA 
that it funded them to obtain the fee; were denied the opportunity to obtain loan forgiveness; and 
were reliant on Prestamos to fund their loans and remain bound under their Loan Documents to 
pay back to Prestamos those loan proceeds with interest. ¶¶ 14, 376-377. 
Many other SBA-approved but unfunded borrowers have publicly voiced similar 
complaints about Prestamos’ failure to fund their loans. ¶¶ 372(a)-(g), 373(a)-(xx). Data 
Prestamos produced in discovery show there are 7,417 total class members in just the eight Class 
Member States whose PPP loan principal totaled $122,489,761.00 and for which Prestamos 
 
1  
Unless otherwise noted, all capitalized terms have the meaning set forth in the Table of 
Abbreviations in Plaintiffs’ brief in support of class certification, and all paragraph citations are 
to Plaintiffs’ TAC (ECF No. 108). 
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obtained fees of $17,935,811.00. Plas’ App’x Ex 27. Plaintiffs’ Appendix also identifies the 
specific respective class member amounts segregated for each Class Member State. Id.  
 Based on Prestamos’ alleged false reporting to the SBA that Plaintiffs’ loans were 
funded so Prestamos could obtain the fee, SBA data identifies Plaintiffs’ loans as funded even 
though the loans were not funded. ¶¶ 12, 122-23, 138-39, 149-50, 160-61, 172-73, 184-85, 196-
97, 210-11. Accord Plas’ App’x Ex 25 (attaching Prestamos’ SBA Form 1502 reports on 
Plaintiffs’ loans).  
 Plaintiffs also allege that Prestamos obtained advances from the PPPLF to fund the loans 
via PPPLF PAR forms. ¶¶ 107-09. See also Pls’ App’x Ex 26 (attaching Prestamos’ PAR forms 
for Plaintiffs’ loans).  
In total, Prestamos committed to make 494,415 PPP loans for over $7.6 billion principal 
in 2021 through May 31, 2021 -- more PPP loans than any other lender in 2021, and more than 
the total number of PPP loans made in 2021 by Bank of America, PNC Bank, TD Bank and 
Wells Fargo combined. ¶ 9.  
            As a result, Prestamos reportedly was paid nearly $1.2 billion by the SBA in total PPP 
loan fees (¶ 10), and received net fees of over $314 million. Prestamos was obligated to pay a 
portion of the gross loan fees it obtained to its contractual LSP, Blueacorn (¶ 95).  
 
            Prestamos was at all times material to its PPP lending governed by a three person Board 
of Directors consisting solely of senior CPLC executives Alicia Nunez (“Nunez”), who is 
presently CPLC’s President and CEO; Max Gonzales, who is presently CPLC’s Executive Vice 
President; and David Adame, who served as CPLC’s President and CEO until October 6, 2023, 
when he resigned amid allegations of financial malfeasance, and Nunez took his place. ¶¶ 38, 82. 
See Arizona Independent, Allegations of Fraud Haunt Chicanos Por La Causa As Adame Exits 
(Oct. 5, 2023) (“While the organization released a statement claiming that Adame left to ’pursue 
other opportunities,’ sources say allegations of financial malfeasance preceded his exit.”), 
available at https://arizonadailyindependent.com/2023/10/05/allegations-of-fraud-haunt-
chicanos-por-lacausa-as-adame-exits/. 
 
 By Orders on December 5, 2023 and July 30, 2024, the Court granted CPLC’s motion to 
dismiss for lack of personal jurisdiction. ECF Nos. 93, 134. On March 30, 2023, the Court 
granted in part and denied in part Prestamos’ motion to dismiss. ECF Nos. 56-57. The Court held 
that Plaintiffs have standing to bring their breach of contract claim only under the laws of the 
state in which they reside or were injured; denied Prestamos’ motion to dismiss the contract 
claim; and granted Prestamos’ motion to dismiss Plaintiffs’ other state law claims. ECF No. 56 at 
35-36; Marshall v. Prestamos CDFI, LLC, 2023 WL 2727541, at *17-18 (E.D. Pa. March 30, 
2023). 
 As a result, Plaintiffs’ currently operative TAC alleges only a single count -- breach of 
contract, individually and on behalf of class members only in Plaintiffs’ respective Class 
Member States. After Phase I discovery, the parties stipulated to the dismissal of 11 of the 21 
original plaintiffs. Thus, the 10 remaining Plaintiffs cover the eight Class Member States of 
California (plaintiffs Marshall and Townsend), Michigan (Henderson), Arizona (Jones), Utah 
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(Martin), Texas (Lloyd and Smith), Indiana (Johnson), Mississippi (Marvel) and New York 
(Horne).  
 Whether this Court applies Pennsylvania law or the law of the Class Member States in 
which the Plaintiffs reside or were injured, the alleged breaches in this case would similarly 
violate the laws of all such states as discussed more fully in Plaintiffs’ accompanying brief. See 
also Plas’ App’x Ex 24 (attaching a chart comparing the contract law of Pennsylvania and the 
respective eight Class Member States). The same is true as to Plaintiffs’ estoppel claim. See, e.g., 
Spear v. Fenkell, 2016 WL 5661720, at *49 (E.D. Pa. Sept. 30, 2016), clarified on denial of 
reconsideration, 2016 WL 7475814 (E.D. Pa. Dec. 29, 2016) (“[t]he doctrine [of quasi-estoppel] 
applies where it would be unconscionable to allow a person to maintain a position inconsistent 
with one in which he acquiesced, or of which he accepted a benefit.”); In re Guterl Special Steel 
Corp., 316 B.R. 843, 856 (Bankr. W.D. Pa. 2004) (same); Sports Imaging of Ariz., L.L.C. v. 1993 
CKC Tr., 2008 Ariz. App. LEXIS 212 at *103-104 (1st. Div. Sept 30, 2008); Estate of Shank, 
154 Cal. App. 2d 808, 316 P.2d 710, 711-12 (4th Dist. 1957); Berg v. Berg, 151 N.E.2d 321, 331 
(Ind. 2020) (superseded on other grounds, 170 N.E.3d 224 (Ind. 2021)); Bailey v. Estate of 
Kemp, 955 So.2d 777 at ¶ 21 (Miss. 2007); Robins v. Procure Treatment Ctrs., Inc., 2017 
N.Y.Misc. LEXIS 1463 at *10-11 (Sup. Ct. Apr. 18, 2017) (citing Mahoney-Buntzman v. 
Buntzman, 12 N.Y.3d 415 (2009)); Steubner Realty 19, Ltd. v. Cravens Rd. 88, Ltd., 817 S.W.2d 
160, 164 (Tex. Ct. App. 1991); B.J.M. v. B.S. (In re R.B.F.S.), 2012 UT App 132 at ¶ 31 (2012); 
Grand T. W. R. Co. v. Fuller, 205 Mich. 486, 489, 171 N.W. 498, 499 (1919). (“Where one 
having the right to accept or reject a transaction takes and retains a benefit thereunder, he 
becomes bound by the transaction and cannot avoid its obligations or effect by taking a position 
inconsistent therewith.”). 
Plaintiffs’ claims arise from the parties’ same standard form Loan Document contracts 
executed by Plaintiffs and class members on the one hand, and Jose Martinez, President of 
Prestamos, on the other. The parties’ Loan Documents consist of a standard form SBA note and 
accompanying standard form documents, a complete set of which was also filed in the case of 
plaintiff Marshall as Exhibit A to Plaintiffs’ TAC. See ECF No. 108 at Exhibit A. See also Plas’ 
App’x Exs 1-10 (attaching Plaintiffs’ Loan Documents).  
 The same provisions of the Loan Documents will therefore drive the classwide 
determination of the key liability issues in this case, as also discussed more fully in Plaintiffs’ 
accompanying brief. These include whether the Loan Documents are binding, enforceable 
contracts requiring Prestamos to fund the loans as Plaintiffs contend (see, e.g., ECF No. 108 at ¶¶ 
420-23), or whether “there was no contract between Plaintiffs and Prestamos in which Prestamos 
committed to funding Plaintiffs’ loans” as Prestamos contends (see, e.g., ECF No. 46-1 at 31); 
whether Prestamos falsely reported to the SBA that the loans were funded and collected a fee; 
whether Plaintiffs and class members are still obligated to repay Prestamos plus interest on the 
loans; whether Plaintiffs and class members were locked into and reliant on Prestamos to fund 
the loans and thereby denied the opportunity for forgiveness; whether the release in the parties’ 
note releases Prestamos; and whether Prestamos should be estopped from arguing that an attempt 
to fund a loan immunizes it because, in this case, Prestamos is alleged to have also both falsely 
reported to the SBA that the loans were funded, and collected a fee thereby.  
 
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There are additional legal and factual issues concerning the claims and defenses the 
determination of which apply classwide. For example, Prestamos has also argued that there is no 
private cause of action under the CARES Act, and that “Plaintiffs’ claims are an impermissible 
attempt to enforce the provisions of a statute under which Congress did not grant them a right to 
do so.”  ECF No. 46-1 at 17. Prestamos also argues that the CARES Act “bars Plaintiffs’ 
claims.” ECF No. 119 (Tenth Affirmative Defense) at p. 65. Prestamos itself also even asserts 
that Plaintiffs’ claims are barred by the doctrine of estoppel. Id. at p. 64 (Sixth Affirmative 
Defense). 
 In sum, the core questions underlying the determination of liability in this case are 
susceptible to common evidence and proof. The parties’ standard form Loan Documents and 
interpretation of uniform PPP rules will drive resolution of Prestamos’ obligation to fund, class 
members’ obligation to repay, whether the release applies and whether forgiveness was 
effectively precluded. Prestamos’ SBA Form 1502 reports and fees and PARs for PPPLF 
advances are additional classwide evidence in this case. 
II. 
The Proposed Classes 
 Plaintiffs seek to certify the following two Classes:  
Damages Class: all persons and entities in the Class Member States who, in 2021, 
applied for PPP loans with defendant Prestamos as the lender for whom the SBA 
provided a SBA loan number, and who executed and submitted their Loan Documents 
and provided to Prestamos all required loan documentation, but as to whom Prestamos 
both failed to disburse the PPP loan proceeds and reported to the SBA that the loan 
proceeds were disbursed. 
 
Declaratory Judgment Class:  all persons and entities in the Class Member States who, 
in 2021, applied for PPP loans with defendant Prestamos as the lender for whom the SBA 
provided a SBA loan number, and who executed and submitted their Loan Documents 
and provided to Prestamos all required loan documentation, but as to whom Prestamos 
both failed to disburse the PPP loan proceeds and reported to the SBA that the loan 
proceeds were disbursed. 
Excluded from the Classes are defendant Prestamos and its corporate parent CPLC; any 
of their affiliates and entities in which they have a controlling interest; any of their agents and 
employees; any Judge to whom this action is assigned; and any member of such Judge’s staff and 
immediate family.  
 
III. 
Proving Liability Through Predominantly Common Evidence 
 
A. 
General 
 
Plaintiffs allege in Count I (the only Count) breach of contract claims against Prestamos. 
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Plaintiffs intend to establish liability for their breach of contract claim using evidence 
common to themselves and the members of the classes. Examples of such common evidence 
include:  
- 
the standard form note and accompanying Loan Documents that Plaintiffs 
and the members of the classes entered into with defendant Prestamos  
 
- 
applicable PPP regulations governing PPP loan funding, obtaining 
advances from the PPPLF, and loan status and ongoing loan reporting 
obligations to the SBA concerning the loans 
 
- 
the SBA Form 1502 Reports Prestamos submitted to the SBA concerning 
Plaintiffs’ and class member PPP loans 
 
- 
the PARs that Prestamos submitted to Federal Reserve’s PPPLF to obtain 
advances from the PPPLF secured by Plaintiffs’ and class member PPP 
loans  
 
- 
expert testimony, including without limitation the opening and rebuttal 
reports and testimony of Plaintiffs’ proposed experts William Manger 
(“Manger”) and William Briggs (“Briggs”) as to issues relating to liability, 
and Steven P. Feinstein (“Feinstein”) as to issues relating to damages   
 
- 
other documents and testimony of the parties and non-parties concerning 
Prestamos’ failure to fund SBA-approved PPP loans   
 
B. 
Elements of Plaintiffs’ Breach of Contract Claim 
 
“Under Pennsylvania law, three elements are necessary to plead a cause of action for 
breach of contract: (1) the existence of a contract, including its essential terms; (2) a breach of 
the contract; and (3) resultant damages.” Doe v. Univ. of Sciences, 961 F.3d 203, 211 (3d Cir. 
2020), quoted in Boscov’s Dep’t Store, Inc. v. Am. Guarantee & Liab. Ins. Co., 546 F. Supp. 3d 
354, 370 (E.D. Pa. 2021). As set forth in Plas’ App’x 24, the laws of the eight Class Member 
States are materially in accord.  
1. 
Existence of an Enforceable Contract 
 
 
-- Plaintiffs intend to prove the existence of an enforceable contract by 
common evidence including 
 
 
 
- 
the parties’ standard form note and accompanying Loan 
Documents which, among other provisions, identifies the 
specific PPP loan, SBA loan number and amount of the 
loan; specifies that the parties to the note are, respectively, 
the class member borrower and the “Lender” Prestamos; 
provides that “[t]his loan is made pursuant to the PPP”; 
requires the borrower to pay back the principal of the loan 
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plus interest if the PPP loan is not forgiven; contains other 
PPP loan repayment terms and events of default and the 
lender’s rights in the event of the borrower’s default; and 
contains general provisions, including specifically that 
“[a]ll individuals and entities signing this Note are jointly 
and severally liable” 
 
 
 
- 
the Additional and Correction Documents Agreement 
(Errors and Omissions Agreement) that accompanies the 
note and provides additional terms and states at the outset:  
“In consideration of Prestamos CDFI, LLC, located at 1024 
E Buckeye RD, Suite 270, Phoenix, AZ 85034 (hereinafter 
called ‘Lender’) making the above loan, each of the 
undersigned, jointly and severally, do hereby agree as 
follows ….” 
 
 
 
- 
the “Notice - No Oral Agreements” document that is also 
part of the Loan Documents and governs the “Loan by 
Lender, Prestamos CDFI, LLC to Borrower”; identifies 
each class member borrower; and is executed by both 
Prestamos by its President Martinez, and each Plaintiff and 
class member borrower 
 
 
 
- 
applicable PPP regulations governing PPP loan funding, 
obtaining advances from the PPPLF, loan status, loan 
forgiveness and ongoing loan reporting obligations, 
including without limitation the SBA Form 1502 reports 
and PARs 
 
- 
the SBA’s Procedural notices concerning the PPP, 
including the “Second Updated Paycheck Protection 
Program Lender Processing Fee Payment and 1502 
Reporting Process” issued Feb. 8, 2021, which similarly 
required that “Lenders must submit a complete and 
accurate 1502 report”; that “PPP loans must be fully 
disbursed, and the amount reported in this field must match 
the loan approval amount in the SBA’s electronic system”; 
and that, before the SBA would pay a loan processing fee 
to the lender, the lender “must make a one-time 
confirmation” that all PPP loans “included in the report 
were fully disbursed to the borrowers on the disbursement 
dates entered and in the loan amounts entered in the report, 
and … all information in the report is true and correct” 
 
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- 
expert testimony, including without limitation the opening 
and rebuttal reports and testimony of Manger, Briggs and 
Feinstein 
 
2. 
Breach of Contract 
 
 
-- Plaintiffs intend to prove Prestamos breached the parties’ Loan 
Documents by common evidence including 
 
 
 
- 
Plaintiffs’ signing of and performance under the Loan 
Documents and in obtaining an SBA loan number 
approving their loans and completing and returning to 
Prestamos all required loan documentation 
 
- 
the provisions of the Loan Documents 
 
 
 
- 
applicable PPP regulations and guidance referred to above 
and other provisions of the PPP, including for example the 
SBA’s funding rule which in relevant part states as follows: 
“The lender must make a one-time, full disbursement of the 
PPP loan within 10 calendar days of loan approval; for the 
purposes of this rule, a loan is considered approved when 
the loan is assigned a loan number by SBA.” 86 Fed. Reg. 
3692, 3710  
 
 
 
- 
Prestamos’ PAR forms to the PPPLF to obtain funds from 
the PPPLF secured by, and to fund, Plaintiffs’ and class 
member PPP loans 
 
- 
Prestamos’ SBA Form 1502 reports to the SBA regarding 
Plaintiffs’ and class member PPP loans and the PPP loan 
fees Prestamos obtained 
 
- 
SBA PPP loan forgiveness requirements and application 
forms such as SBA PPP Loan Forgiveness Application 
Form 3508S applicable “ONLY IF THE BORROWER 
RECEIVED A PPP LOAN OF $150,000 OR LESS” 
(emphasis in original), including the requirement that the 
PPP loan forgiveness applicant certify how it used the loan 
proceeds 
 
- 
expert testimony, including without limitation the opening 
and rebuttal reports and testimony of Manger and Briggs  
 
 
 
 
 
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3. 
Causation 
 
 
-- Plaintiffs intend to prove that Prestamos’ breaches were the cause of 
Plaintiffs’ damages by common evidence such as: 
 
 
 
- 
the evidence identified above including the parties’ Loan 
Documents, Prestamos’ Form 1502 reports and fees, 
Prestamos’ PARs and applicable PPP rules and guidance 
 
- 
other documents and testimony of the parties   
 
- 
expert testimony, including without limitation the opening 
and rebuttal reports and testimony of Manger, Briggs and 
Feinstein  
 
 
 
4. 
Damages 
 
 
-- Plaintiffs intend to prove that Prestamos’ breaches damaged Plaintiffs 
by common evidence such as:  
 
- 
the evidence identified above regarding Prestamos’ breach 
of the parties’ Loan Documents and applicable PPP rules 
and guidance  
 
 
 
- 
other documents and testimony of the parties 
 
 
 
- 
expert testimony, including without limitation the opening 
and rebuttal reports and testimony of Feinstein, and 
Feinstein’s opinions that “Damages in this matter can be 
computed in a straightforward way for all Class members 
using a common methodology that is consistent with 
Plaintiffs’ theory of liability” and “that measuring damages 
for each Class member as the difference between the SBA-
approved PPP loan amount and the amount the Class 
member received, which Plaintiffs alleged is zero,  plus 
prejudgment interest, is a feasible common class-wide 
methodology that provides a conservative measure of the 
economic damages sustained by each Class member.” Plas’ 
App’x 12 ¶¶ 22-23 
 
 
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