Tripp v. Charlie Falk's Auto Wholesale Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 01-2134

ARTHUR TRIPP, on behalf of themselves and others similarly
situated; MELDREDTH TRIPP, on behalf of themselves and others
similarly situated,

Plaintiffs - Appellants,

and

CHRISTIE SHEPHERD; TIMOTHY SHEPHERD,

Plaintiffs,

v.

CHARLIE FALK’S AUTO WHOLESALE INCORPORATED; FUTURE FINANCE
CORPORATION,

Defendants - Appellees,

and

CHARLIE FALK, SR.; FRED HAILEY; KATHERINE FALK,

Defendants.

--------------------------

FINOVA CAPITAL CORPORATION,

Movant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CA-00-512-3)

Argued: May 13, 2008 Decided: August 29, 2008

Before TRAXLER and GREGORY, Circuit Judges, and Alexander WILLIAMS,
Jr., United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by unpublished opinion. Judge Williams wrote the opinion,
in which Judge Gregory joined. Judge Traxler wrote a separate
opinion concurring in part and dissenting in part.

ARGUED: Thomas Dean Domonoske, LAW OFFICE OF DALE W. PITTMAN,
Harrisonburg, Virginia, for Appellants. Robert Dean Perrow,
WILLIAMS MULLEN, Richmond, Virginia, for Appellees. ON BRIEF: John
Cole Gayle, Jr., KANE, JEFFRIES, GAYLE, MCGRATH & COOPER, Richmond,
Virginia; Dale W. Pittman, Petersburg, Virginia; David Brian
Rubinstein, Fredericksburg, Virginia, for Appellants. J. P.
McGuire Boyd, Jr., WILLIAMS MULLEN, Richmond, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
WILLIAMS, District Judge:

This appeal involves the interpretation of two federal

statutes: the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et

seq., and the Motor Vehicle Information and Cost Savings Act (the

“Federal Odometer Act” or “FOA”), 49 U.S.C. § 32701, et seq.

Appellants Arthur and Linda Tripp (the “Tripps”) appeal the

district court’s denial of their motion for summary judgment and

the granting of Charlie Falk Auto Wholesale, Inc.’s (“CFAW”) motion

for summary judgment on both of the Tripps’ claims arising under

TILA and the Federal Odometer Act. Because the Tripps have failed

to show that there are genuine issues of material fact that CFAW

violated either TILA or the Federal Odometer Act, we affirm the

district court’s ruling.

I.

On August 7, 1999, the Tripps entered into a deal at CFAW for

the purchase of a 1994 Ford Taurus (the “vehicle”), which they

intended to finance. After the Tripps had selected the vehicle and

negotiated the basic terms of the deal, a CFAW employee placed

several documents (the “transaction documents”) before them to read

and sign. The primary transaction documents were as follows: the

Buyer’s Order; the Motor Vehicle Installment Sale Contract, which

included the Truth-in-Lending Disclosures, the Promissory Note, and

the Security Agreement (the “credit contract”); the Re-Assignment

3
of Title by Virginia Motor Vehicle Dealer Form (the “Re-Assignment

Form”); a document entitled “Important Notice;” and the Application

for Certificate of Title and Registration.

The Buyer’s Order itemized the sale price of the vehicle and

other amounts to be paid. It also contained an odometer disclosure

statement, showing that the vehicle had a total mileage of 67,154

miles. This document included a provision entitled “Seller’s Right

to Cancel,” which essentially provided that if the financing deal

had not been accepted by the financing company -- Future Finance

Company, Inc. (“Future Finance”) -- the Seller could void the

contract. This clause provided for the return of the vehicle and

allowed the Buyer to receive his down payment, less any mileage

charges or physical damage or other expenses incurred in recovering

the vehicle.

The Credit Contract is the document setting forth the terms

and conditions of the financing deal in addition to the required

TILA disclosures. This document also contained a provision

regarding the contingency of the contract on the approval of the

financing agreement by Future Finance. The Credit Contract, like

the Buyer’s Order, included a section entitled “Itemization of

Amounts Owed,” which reflected the inclusion of a $395.00

processing fee in the total amount financed.

The Important Notice document contains an exact reprint of a

provision from the sales contract, notifying the buyer and co-buyer

4
that the vehicle must be returned to the dealer if the financing

agreement is not approved. The document also included a provision

at the top of the page that the buyer is to read the notice

carefully and sign below, “acknowledging complete understanding” of

the contract and its terms.

The Re-Assignment Form is a document that transferred title to

the vehicle from CFAW to the Tripps and also identified Future

Finance as the lienholder on the vehicle. Additionally, this

document contained the odometer disclosure statement, which also

showed a mileage reading of 67,154 on the date of purchase, August

7, 1999.

Finally, the Application for Certificate of Title and

Registration disclosed the owner’s information, the lienholder’s

information, as well as the mileage disclosure and the date of

purchase.1

A CFAW employee presented and explained these documents to

the Tripps, and afterwards, the Tripps signed each document,

thereby completing the transaction and contractually binding

themselves. The deal required the Tripps to make a $1,000 down

payment, $500 of which was initially paid the Tripps, with the

remaining balance being paid in two installments within the next

1
In addition to these documents, CFAW issued a temporary
certificate for the vehicle and gave temporary license tags to the
Tripps.

5
two weeks. That same day, the Tripps left the dealership with the

vehicle.

On August 24, 1999, CFAW informed the Tripps that Future

Finance had not approved the deal. CFAW then gave the Tripps the

option to restructure a new deal, which would require an additional

$500 down payment, or they could return the vehicle. The Tripps

did not agree to either of these options, and CFAW subsequently

took possession of the vehicle. Thereafter, on August 25, 1999,

Mr. Tripp went to CFAW and requested the return of his down

payment. He was told that he could receive a refund that day only

if he went to the Norfolk dealership. Thereafter, the Tripps went

to Norfolk, Virginia, to receive their refund. They were asked

again by a CFAW employee to renegotiate the deal but refused.

Before the Tripps could receive their refund, they were required to

sign a Release Form, which purported to release CFAW from any

liability and prevent the Tripps from bringing any suit or claim

against CFAW regarding the purchase of the vehicle. After

deducting the contractual mileage charge, the Tripps received a

check in the amount of $656.80 and cashed it that day.

On August 8, 2000, the Tripps initiated this lawsuit by filing

their complaint in the Eastern District of Virginia.2 Both parties

2
The case was initially filed as a class action against CFAW,
Future Finance – its related financial institution – and CFAW’s
chief individual officers for violations of both federal and state
law. However, the individual defendants, as well as the other set
of Plaintiffs, were dismissed from the case.

6
filed motions for summary judgment: the Tripps moved for summary

judgment on the TILA and the Virginia Consumer Protection Act

claims, and CFAW moved for summary judgment on the TILA and the

Federal Odometer Act claims. After hearing oral argument, the

district court found that the Release signed by the Tripps was

unenforceable and not supported by adequate consideration, and thus

not a valid contract. The district court then ruled on the federal

law claims, denying the Tripps’ motion for summary judgment and

granting CFAW’s motion for summary judgment. The district court

also declined to exercise supplemental jurisdiction over the state

law claims and accordingly dismissed those claims.3

II.

Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). In reviewing a grant of summary judgment, we apply the same

3
There has been quite a delay in the completion of this
appeal. The Tripps filed their Notice of Appeal on September 19,
2001. However, on February 7, 2002, after the Tripps filed their
opening brief but before CFAW (and Future Finance) filed their
response brief, the case was suspended pending the resolution of a
Chapter 11 bankruptcy petition filed by Future Finance. See In re
Future Finance Company, Inc., Case No. 02-DHA-70457 in the United
States Bankruptcy Court for the Eastern District of Virginia,
Norfolk Division. Since that cased has been resolved, the briefing
scheduled was resumed by Order of the Court, dated November 14,
2007.

7
standards as the district court, and our scope of review is de

novo. Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408,

418 (4th Cir. 2004). On summary judgment, any permissible

inferences to be drawn from the underlying facts must be viewed in

the light most favorable to the party opposing the motion.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587-88, (1986). The Tripps appeal the district court’s ruling

granting summary judgment to CFAW on the TILA and the Federal

Odometer Act claims as well as its decision to decline jurisdiction

over the state law claims. We shall address each claim

individually.

III.

Under TILA, the Tripps contend that the district court erred

in granting summary judgment to CFAW because material issues of

fact remain as to whether CFAW complied with TILA by providing the

required credit disclosures to the Tripps in the proper form and at

the proper time, as mandated by the Act and its regulations.

First, they argue that CFAW failed to comply with the form and

timing provision of the Act’s disclosure requirements by waiting

until after the contract was signed to give the Tripps a copy of

the document. Second, they argue that CFAW failed to label the

processing fee as a “finance charge” that was optional for cash

purchasers. Third, the Tripps argue that CFAW failed to make known

8
that the TILA disclosures were estimates. Finally, as a result of

these violations, the Tripps contend that they are entitled to

statutory damages.

A.

TILA was passed by Congress in order to “assure a meaningful

disclosure of credit terms so that the consumer will be able to

compare more readily the various credit terms available to him and

avoid the uninformed use of credit . . . .” 15 U.S.C. § 1601(a);

see also Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 363

and n.20 (1973). TILA mandates that creditors make specific

disclosures before extending credit to consumers. 15 U.S.C. §

1638(a), (b). The Federal Reserve Board (“FRB”), the agency

charged with administering the statute, has adopted Regulation Z to

implement the Act’s mandates and methods of disclosure. See 12

C.F.R. Part 226 (2001).

TILA requires a lender to disclose to a borrower, among other

things, the amount financed, the finance charge, the annual

percentage rate, and the total sale price. 15 U.S.C. § 1638; 12

C.F.R. § 226.18. In closed-end transactions, like the one in this

case, the creditor must make the specified disclosures “clearly and

conspicuously in writing, in a form that the consumer may keep”

before “consummation4 of the transaction,” i.e., before the credit

4
“Consummation” means the time that a consumer becomes
contractually obligated on a credit transaction. 12 C.F.R. §
226.2(a)(13).

9
is extended. 12 C.F.R. § 226.17(a), (b); see also 15 U.S.C. §

1638(b). The Amended Commentary to the regulation states that

Creditors are not required to give the consumer two
separate copies of the document before consummation, one
for the consumer to keep and a second copy for the
consumer to execute. The disclosure requirement is
satisfied if the creditor gives a copy of the document
containing the unexecuted credit contract and disclosures
to the consumer to read and sign; and the consumer
receives a copy to keep at the time the consumer becomes
obligated. It is not sufficient for the creditor merely
to show the consumer the document containing the
disclosures before the consumer signs and becomes
obligated. The consumer must be free to take possession
of and review the document in its entirety before
signing.

67 Fed. Reg. 16983 (April 9, 2002) (emphasis added).5

We have had the opportunity to address the plain meaning of

this regulation in Polk v. Crown Auto, Inc., 221 F.3d 691 (4th Cir.

2000) (Polk I). There, the issue before the court was “whether a

seller is required to make the required disclosures in writing and

in a form that the consumer can keep before consummation, or

whether Regulation Z is satisfied as long as the disclosures are

5
Regulation Z also provides the following illustration showing
a creditor’s compliance with the form and timing requirements of 12
C.F.R. § 226.17:

A creditor gives a consumer a multiple-copy form
containing a credit agreement and TILA disclosures. The
consumer reviews and signs the form and returns it to the
creditor, who separates the copies and gives one copy to
the consumer to keep. The creditor has satisfied the
disclosure requirement.

67 Fed. Reg. at 16983.

10
made in some form [i.e., orally] before consummation and the

consumer later receives the disclosures in writing, in a form that

he can keep.” Polk I, 221 F.3d at 692. We held there that the

plain meaning of the statute was clear, in that written disclosures

must be provided to the consumer in a form that he could keep

before consummation of the transaction. Id.

Turning to the facts in this case, the Tripps contend that

CFAW violated TILA because they did not provide the Tripps with the

document containing the TILA disclosures in a form they could keep

prior to consummation, i.e., they were not given physical

possession of the document as opposed to simply viewing it.

However, contrary to the Tripps’ interpretation, nothing in the

statute or the case law requires actual, physical possession of the

documents to satisfy the Act’s provisions. As long as disclosures

are made in writing before the transaction is complete, the

requirements under the statute and the regulations are met.

Here, the record shows that a CFAW employee provided the

transaction documents and credit disclosures to the Tripps before

signing, i.e., before the transaction was consummated, and the

Tripps had the opportunity to read the documents before signing.

This manner of presenting the documents satisfied the form and

timing requirements. Polk I, 221 F.3d at 692; see Regulation Z, 67

Fed. Reg. at 16983 (“The disclosure requirement is satisfied if the

creditor gives a copy of the document containing the unexecuted

11
credit contract and disclosures to the consumer to read and sign;

and the consumer receives a copy to keep at the time the consumer

becomes obligated.”).

TILA does not compel the consumer to take the document,

although they are not prevented from doing so. Nor does TILA

compel the consumer to read it, although it is perhaps a prudent

thing to do. The Tripps admitted several times that they did not

read the contract or all of the documents placed before them. The

Tripps also acknowledged during their deposition testimony that

CAFW gave them the transaction documents and explained “most of the

important numbers.” (J.A. 276). Furthermore, the Tripps stated

that the CFAW employee asked them to sign the document “if all of

that [the terms] was agreeable to [them].” (J.A. 276). Their

signature is evidence that the disclosed credit terms were

“agreeable” to them.

Additionally, one of the stated purposes of TILA is to allow

consumers to use these disclosures and “compare more readily the

various credit terms,” presumably with other creditors. The Tripps

admitted in their depositions that they were not going to “shop

around” to other dealerships because they were told that they were

approved for a car, and there was no reason to continue searching.

(J.A. 259-60). While that fact does not relieve CFAW of its

obligations to comply with the statute, it diminishes the

likelihood of a violation, and it certainly minimizes any potential

12
harm or damage, if any, to the Tripps by CFAW’s actions.

Nevertheless, the record shows that CFAW did provide the Tripps the

disclosures in writing in a form they could keep prior to

consummation. Thus, we find that there were no violations of the

form and timing requirements as provided under TILA.

B.

The Tripps next contend that CFAW violated TILA by failing to

label the $395 processing fee as a “finance charge” that was

optional for cash purchasers. As stated above, the “finance

charge” is one of the items that must be disclosed to consumers. 15

U.S.C. § 1638(a)(3); see also 12 C.F.R. § 226.18 (requiring

disclosure and itemization of, inter alia, the finance charge and

the amount financed). Under TILA, a “finance charge” is any charge

“imposed directly or indirectly by the creditor as an incident to

the extension of credit,” but it “does not include charges of a

type payable in a comparable cash transaction.” 15 U.S.C. §

1605(a); see also 12 C.F.R. § 226.4(a). The reason is that such

charges cannot be considered as having been imposed “as an incident

to the extension of credit.” To prevail under this provision of

TILA, a plaintiff must provide evidence that a fee was incident to

the extension of credit and not charged in comparable cash

transactions. See Polk v. Crown Auto, Inc., 228 F.3d 541, 542 (4th

Cir. 2000) (Polk II); see also Alston v. Crown Auto, Inc., 224 F.3d

332, 334 (4th Cir. 2000).

13
 The Tripps argue that they presented evidence that an issue of

fact was raised about whether CFAW charged them a mandatory

processing fee that was optional for cash purchasers. They point

to the deposition testimony of Mr. Timothy Doe, who testified on

behalf of CFAW for a previous case in 1999 where CFAW was involved.

Mr. Doe testified during a deposition in that case that the

processing fee would not have been charged to a customer who

purchased a vehicle with cash. (J.A. 178-79, 664-65). Mr. Doe

later corrected himself, after having taken a break and reviewed

the relevant documents, and came back on the record to explain that

he had been mistaken on one of his previous answers and that the

$395 processing was charged on all transactions – both cash and

credit. (J.A. 666-67).

In this case, Mr. Doe testified that regardless of whether the

transaction is one for cash or credit, the $395 processing fee is

charged to all customers for the necessary title work. (J.A. 629-

633). In addition, documents produced by CFAW show that in 1999,

when the Tripps purchased their vehicle, CFAW’s general practice

was to charge the fee to both cash and credit customers.6

Moreover, these documents – the Buyer’s Purchase Orders – clearly

indicate that the seller’s processing fee is “applicable to Cash or

6
CFAW produced eighteen Buyer’s Purchase Orders showing that
between July 1999 and September 1999 – the relevant time period for
the Tripps’ transaction – the $395.00 processing had been charged
in cash sale transactions. (J.A. 414-431).

14
Credit Sales.” (J.A. 414-31). Because the Tripps have not

produced evidence to refute CFAW’s general practice of charging the

$395 processing for both cash and credit transactions, we find that

the $395 processing fee was not a “finance charge” under TILA, and

CFAW was not required to disclose it as a “finance charge.” Polk

II, 228 F.3d at 542 (4th Cir. 2000) (finding that $85 processing

fee was not a “finance charge” under TILA and that dealer was not

required to disclose it as such); Alston, 224 F.3d at 334 (same).

C.

The Tripps next argue that CFAW violated TILA by failing to

make known that the disclosures were estimates. They underscore

their argument by contending that the district court erred in

failing to determine whether the contract was one with a condition

precedent or a condition subsequent so as to establish the

effective date of the contract and thus determine whether the

disclosures were accurate at that time.

TILA requires that the credit disclosures “reflect the terms

of the legal obligation of the parties.” 12 C.F.R. § 226.17(c)(1).

Disclosures must be labeled as estimates when “any information

necessary for an accurate disclosure is unknown to the creditor.”

12 C.F.R. § 226.17(c)(2)(I). Moreover, even If the information

disclosed under TILA is “subsequently rendered inaccurate as the

result of any act, occurrence, or agreement subsequent to the

15
delivery of the required disclosures, the inaccuracy resulting

therefrom does not constitute a violation.” 15 U.S.C. § 1634.

For purposes of TILA, the crux of the inquiry begins and ends

at the moment when the transaction is consummated. As we have held

previously, when the consumer has signed the buyer’s order and the

retail installment sales contract, the transaction is

“consummated.” Nigh v. Koons Buick Pontiac GMC, Inc., 319 F.3d 119,

124 (4th Cir. 2003), rev’d on other grounds, 543 U.S. 50, 125 S.Ct.

460 (2004). Relying on Nigh, we concluded in Gibson v. LTD, Inc.,

that “when the purchaser of a motor vehicle signs a retail

installment sales contract after which he no longer can alter the

terms of credit and after which the dealer retains the exclusive

right to decide when the financing arrangement takes effect, the

transaction is ‘consummated’ for TILA purposes.” 434 F.3d 275, 281

(4th Cir. 2006); Nigh, 319 F.3d at 124; see also Bragg v. Bill

Heard Chevrolet, Inc., 374 F.3d 1060, 1066 (11th Cir. 2004)

(adopting Nigh as being consistent with Regulation Z and the

consumer’s obligations for unfunded financing agreements).

Here, when the Tripps signed the contract documents on August

7, 1999, the transaction was consummated, thereby contractually

obligating the Tripps to the terms of the deal. If the credit

contract had been approved at a later time, the effective date of

the contract would relate back to the date of consummation – August

7, 1999. The credit contract stated, in addition to the Important

16
Notice, that the contract was “contingent on Future Finance

Company, Inc. or other assignee approving and purchasing the

contract from seller.” (J.A. 357). It goes on to explain that “in

the event the contract is not purchased from seller for whatever

reason, the contract shall be voidable at the sole option of the

seller.” Id. If the financing company had approved and agreed to

purchase the credit contract, then the Tripps would have been

legally obligated to purchase the vehicle at the terms disclosed on

the credit contract; those terms could not be altered by the

Tripps. If the financing company had not approved the contract,

then the contract was voidable, since there would (most likely) be

no contract. As such, the terms disclosed under the credit

contract need not have been disclosed by CFAW as estimates – those

were the amounts disclosed to the Tripps that they were obligated

to under the contract.

The Seventh Circuit case of Janikowsky v. Lynch Ford, Inc.,

210 F.3d 765 (7th Cir. 2000), is also instructive on this point.

There, the court affirmed the entry of summary judgment to the

dealer where the plaintiff entered into a new contract to buy a

vehicle at an 11.9% interest rate, when the dealer could not obtain

financing at the initial contract rate of 5.9%. Id. at 767. The

court rejected Plaintiff’s argument that the 5.9% interest rate was

an estimate, stating that it was not an estimate but rather, the

contractual rate, and thus, an “accurate disclosure for that

17
contract” since it “could not and did not vary under its terms.”

Id. at 768. The court went on to explain that had the financing

condition been satisfied, the plaintiff would have been obligated

to purchase the vehicle at the 5.9% interest rate. Id. The

plaintiff could have canceled the contract and refused to purchase

the vehicle, but “[e]ither way, the disclosed rate was a set rate,

not an estimate.” Id.

Moreover, contrary to the Tripps argument, the determination

of whether the contract was one with a condition precedent or a

condition subsequent is unnecessary. Consummation has still

occurred with the signing of the unfunded credit contract by the

Tripps. The sales contract states that the sale is “not contingent

upon financing on terms that are satisfactory to Buyer, yet [is]

contingent upon acceptance of this contract by Future Finance

Company or other Assignee.” (J.A. 355). As we have stated before,

as long as the dealer, and not the consumer, had control over

satisfaction of the terms, we need not reach the issue of

condition-precedent or condition-subsequent. See Gibson, 434 F.3d

at 282.

D.

Next, the Tripps contend that they are entitled to statutory

damages for CFAW’s violations under TILA’s form and timing

requirements and that fact issues remain as to whether CFAW

provided the Tripps with the substantive disclosures in a form they

18
could keep before consummation. We disagree. Since we have found

that there were no violations of the form and timing requirements

or of the manner in which the disclosures were given to the Tripps,

we find that the Tripps are not entitled to any damages under TILA.

As a result, the district court properly granted summary judgment

to CFAW on the TILA claims.

IV.

Under the Federal Odometer Act (“FOA”), the Tripps argue that

the district court erred in granting summary judgment to CFAW

because material issues of fact remained regarding whether CFAW

violated the Act, particularly regarding whether the “intent to

defraud” element was present.

FOA requires that persons transferring ownership of a motor

vehicle must disclose to the transferee, in writing, the

“cumulative mileage registered on the odometer.” 49 U.S.C. §

32705(a)(1)(A). The purpose behind the act was to “prohibit

tampering with motor vehicle odometers” and “to provide safeguards

to protect purchasers in the sale of motor vehicles with altered or

reset odometers.” 49 U.S.C. § 32701(b). However, it is important

to note that FOA’s disclosure provisions are not implicated until

ownership of the vehicle is transferred. 49 U.S.C. § 32705(a)(1);

see also 49 C.F.R. § 580.5©. FOA defines “transfer” to mean “to

19
change ownership by sale, gift, or any other means.” 49 U.S.C. §

32702(8).

FOA prohibits the transferor from making false statements to

the transferee surrounding the required mileage disclosures. 49

U.S.C. § 32705(a)(2). We have interpreted this prohibition to mean

that FOA is violated when the mileage specified on the disclosure

statement fails to correspond with the vehicle’s actual number of

miles traveled, even if the stated mileage does correspond to the

odometer reading at the time of sale. Ryan v. Edwards, 592 F.2d

756, 760 (4th Cir. 1979).7 Civil liability arises under FOA only

if a person violating the Act did so with “intent to defraud.” 49

U.S.C. § 32710; Ryan, 592 F.2d at 761.

At the outset, we note that Virginia is considered a “strict

title” state, which means that transfer of ownership of a motor

vehicle requires the assignment of title. Allstate Ins. Co. v.

Atlanta Cas. Co., 260 Va. 148, 155, 530 S.E.2d 161, 165 (2000);

Rawl’s Auto Auction v. Dick Herman Ford, Inc., 690 F.2d 422, 426-27

(4th Cir. 1982) (citing Thomas v. Mullins, 153 Va. 383, 149 S.E.

494 (1929)). FOA allows title to be transferred on a Reassignment

of Title Form as long as the mileage and other required disclosures

are provided on that document. 49 C.F.R. § 580.5(b),©.

7
In Ryan v. Edwards, we interpreted 15 U.S.C. § 1988, the
predecessor to the current Federal Odometer Act, which also
required “[d]isclosure of the cumulative mileage registered on the
odometer” and prohibited false statements in the disclosure. 595
F.2d 756 (4th Cir. 1979).

20
 Before proceeding to the substance of FOA, we must first

determine whether the FOA’s requirements are triggered – whether

title (i.e., ownership) was transferred to the Tripps. Reviewing

the facts of this case, we find that ownership of the vehicle did

not transfer to the Tripps, and, thus, did not trigger the

requirements of FOA. First, the Tripps admit that title to the

vehicle was never transferred to them. In their complaint, they

state that CFAW never “signed title of the car over to the Tripps.”

(J.A. 19, 24). Additionally, in Virginia, ownership is transferred

whenever title has been assigned to the transferee. Allstate Ins.

Co., 260 Va. at 155, 530 S.E. 2d at 165. Here, since the credit

contract was not approved by Future Finance and the contract was

voided by CFAW, title was never assigned to the Tripps. The Tripps

merely had possession of the vehicle between the time they signed

the credit contract and the time the vehicle was returned to CFAW.

As it remains, there is no viable claim under FOA.

To the extent that title somehow did transfer to the Tripps,

we find that the disclosure requirements of FOA had been satisfied.

CFAW, in accordance with the regulations, was entitled to use a

valid Re-Assignment of Title document (that would have eventually

transferred title to the Tripps) since title to the vehicle was not

in CFAW’s name. 49 C.F.R. § 580.5©. Title was actually in the name

21
of Crestar, with a reassignment to CFAW. (J.A. 47, 787).8 As shown

from the Crestar title, CFAW obtained a written assignment of title

on July 24, 1999, from Crestar, and no new title was issued in

CFAW’s name. On August 7, 1999, when the Tripps signed the credit

contract and were given possession of the vehicle, title of the

vehicle remained in Crestar’s name.

On July 24, 1999, Crestar disclosed the mileage of the vehicle

as 67,149 miles, when it assigned the vehicle’s title to CFAW.

(J.A. 47, 787). Two weeks later, on August 7, 1999, CFAW disclosed

the mileage to the Tripps on the Re-Assignment form as 67,154 miles

(J.A. 778, 358). This reading was taken after a short test drive

by the Tripps. (J.A. 728, 393). On the Re-Assignment of Title

form, CFAW properly disclosed the mileage at the time the form was

executed. In addition to the odometer reading at the time of

transfer, the form also had the other disclosures as required under

the regulation: the date of transfer, the transferor’s name and

current address; the transferee’s name and current address; and the

identity of the vehicle, including the make, model, year, and body

type; and its vehicle identification number. See 49 C.F.R. 580.5©.

Moreover, no evidence has been produced by the Tripps to refute

these odometer readings as inaccurate.

8
Virginia law allows a dealer to obtain a reassignment of
title from a transferor, and since the dealer, like CFAW, merely
holds a vehicle for resale, it is not required to register the
title with the Virginia department of motor vehicles. See Va. Code
Ann. § 46.2-631 (West 2008).

22
 Finding that there were no violations of FOA, we need not

reach the issue of CFAW’s alleged “intent to defraud.”

Furthermore, the law was envisioned to protect consumers from

unscrupulous dealers who were intentionally trying to conceal a

vehicle’s mileage and take advantage of unsuspecting buyers who

were relying upon those disclosures in assessing the safety and

reliability of a vehicle. The facts and circumstances of this case

do not present that situation. Here, CFAW properly recorded the

mileage of the vehicle from the title to the re-assignment form,

and the various documents and testimony do not present any material

issues of fact as being in dispute with regard to the mileage

disclosure. As such, the district court properly granted summary

judgment to CFAW under FOA.

V.

Finally, the Tripps argue that the district court erred in

dismissing their remaining state law claims. The district court,

having disposed of the Tripps’ federal claims under TILA and FOA,

declined to exercise its supplemental jurisdiction over the state

law claims. 28 U.S.C. § 1367©. A district court has the inherent

power to dismiss a case having only state law claims provided that

the conditions for declining supplemental jurisdiction under 15

U.S.C. § 1367© have been met. Hinson v. Norwest Fin. S. C., Inc.,

239 F.3d 611, 617 (4th Cir. 2001). Here, the district court

23
declined to hear the remaining state law claims since the federal

claims over which it had original jurisdiction had been dropped

from the case through summary judgment. See 28 U.S.C. § 1367(c)(3).

These remaining claims could not provide a basis for original

jurisdiction under federal question, 28 U.S.C. § 1331.9 As stated

earlier, exercising supplemental jurisdiction is within the

discretion of the district court and since the district court here

properly granted summary judgment to CFAW on the federal law

claims, we find that there was no abuse of discretion in dismissing

the state law claims. See Shanaghan v. Cahill, 58 F.3d 106, 110

(4th Cir. 1995)(acknowledging that district courts “enjoy wide

latitude in determining whether or not to retain jurisdiction over

state claims when all federal claims have been extinguished.”).

VI.

Based on the foregoing discussion, the judgment of the

district court is therefore

AFFIRMED.

9
There is also no basis for original jurisdiction under
diversity jurisdiction, 28 U.S.C. § 1332, as both parties are
citizens of Virginia.

24
TRAXLER, Circuit Judge, concurring in part and dissenting in part:

I concur in parts I, II, III(C), and IV of the majority

opinion, and I agree with the result reached in part III(A). I

write separately to explain my differing analysis with regard to

the issues addressed in parts III(A), III(B), and V of the majority

opinion.

I.

The Tripps rely on three different legal theories in claiming

that the district court erred in granting summary judgment against

them on their Truth in Lending Act ("TILA") cause of action, see 15

U.S.C.A. § 1601, et seq. I agree with the majority that the

Tripps' claim CFAW did not make known the TILA disclosures were

estimates failed as a matter of law. I will address the Tripps'

other TILA theories seriatim.

A.

The Tripps first argue that the district court erred in

concluding they had not created a genuine factual issue concerning

whether CFAW violated TILA by waiting until after the credit

contract was signed to give them a copy of the document containing

the TILA disclosures. I agree.

In enacting TILA, Congress declared that "[i]t is the purpose

of this subchapter to assure a meaningful disclosure of credit

terms so that the consumer will be able to compare more readily the

25
various credit terms available to him and avoid the uninformed use

of credit." 15 U.S.C.A. § 1601(a) (West 1998). TILA specifically

authorizes the Federal Reserve Board ("FRB") to adopt regulations

to carry out TILA's purposes. See 15 U.S.C.A. § 1604(a) (West

1998).

The transaction at issue in this case was a closed-end credit

transaction governed by 15 U.S.C.A. § 1638 (West 1998 & Supp. 2008)

and "Regulation Z." See 12 C.F.R. pt. 226, subpt. C (2008). With

such transactions, the creditor is required to disclose, inter

alia, the amount financed, the finance charge, the annual

percentage rate, and the total sale price. See 15 U.S.C.A. §

1638(a); 12 C.F.R. § 226.18. These disclosures must be made before

the transaction is consummated. See 15 U.S.C.A. § 1638(b); 12

C.F.R. § 226.17(b). The disclosures also must be made "clearly and

conspicuously in writing, in a form that the consumer may keep."

12 C.F.R. § 226.17(a)(1). Official Staff Commentary to the

regulation clarifies the meaning of "form that the consumer may

keep":

The disclosure requirement is satisfied if the creditor
gives a copy of the document containing the unexecuted
credit contract and disclosures to the consumer to read
and sign; and the consumer receives a copy to keep at the
time the consumer becomes obligated. It is not
sufficient for the creditor merely to show the consumer
the document containing the disclosures before the
consumer signs and becomes obligated. The consumer must
be free to take possession of and review the document in
its entirety before signing.

26
12 C.F.R. pt. 226, Official Staff Commentary 17(b)(3) (emphasis

added). This rule that simply showing the disclosures to the

consumer rather than allowing him to take possession of them

furthers TILA's purpose of allowing consumers "to compare more

readily the various credit terms available." 15 U.S.C.A. § 1601.

If merely allowing a consumer to view the disclosures were

sufficient and allowing the consumer to take possession of the

disclosures were not required, consumers seeking to shop different

creditors' terms would need to memorize all of the figures as they

proceeded from lender to lender.

Here, the Tripps stated in their affidavits and depositions

that CFAW merely showed them the relevant documents but never gave

them the documents until the documents were signed. According to

the Tripps, they did not know CFAW would allow them to take a copy

of its documents so that they could compare the terms offered to

those offered by another lender. I therefore would hold that the

Tripps created a genuine factual issue regarding whether CFAW's

disclosures satisfied TILA's requirements.

CFAW argues it forecast evidence that had the Tripps decided

to reject the terms disclosed on the credit contract, CFAW would

have allowed them to walk away from the deal with a copy of the

unsigned credit contract. In support of this claim, CFAW points to

the following excerpt from the affidavit of Tim Doe, CFAW's

business manager:

27
 If a CFAW customer decides to reject the credit
terms disclosed on the Credit Contract or on a separate
form, even after signing a Buyer's Order, he or she may
discontinue and cancel the entire transaction. In this
situation, CFAW has no policy against a customer leaving
the CFAW dealership with an unexecuted copy of the Credit
Contract, which contains the credit terms mandated by
[TILA] . . . .

J.A. 391. CFAW's argument notwithstanding, CFAW's internal policy

or secret intentions that were never communicated to the Tripps are

not sufficient to discharge CFAW's TILA obligations. Until CFAW

gave the document to the Tripps, or at least told them they could

have it, the Tripps were certainly not "free to take possession of"

CFAW's document. The FRB's Staff Commentary clearly provides that

merely showing the disclosures to the consumer is not sufficient,

and the Tripps forecast evidence that that was all CFAW did in this

case.

B.

Despite my belief that the Tripps created a genuine factual

issue regarding whether CFAW violated TILA by waiting until after

the credit contract was signed to give them a copy of the TILA

disclosures, in the end, I, like the majority, conclude that this

liability theory fails as a matter of law. The district court

concluded that, even if CFAW did not comply with Regulation Z's

form and timing requirements, the Tripps' liability theory failed

because (1) the Tripps failed to create a fact issue regarding

whether they were actually injured from this alleged violation

28
since they had no intention of shopping for better credit terms

with other dealers, and (2) statutory damages were not available

for the violation of untimely providing the required § 1638

disclosures. The Tripps do not challenge the first conclusion, but

they do maintain that proof of a § 1638(b) violation would entitle

them to statutory damages, and thus that failure to prove damages

is not a basis on which summary judgment may be affirmed. However,

for the reasons explained in Baker v. Sunny Chevrolet, Inc., 349

F.3d 862, 865-69 (6th Cir. 2003), I agree with the district court

that statutory damages are not allowed for a defendant's untimely

presentation of the required TILA disclosures, see also Brown v.

Payday Check Advance, Inc., 202 F.3d 987, 990-92 (7th Cir. 2000)

(holding that statutory damages are available only for violations

of subsections specifically enumerated in § 1640(a)), and I would

affirm the grant of summary judgment regarding this theory on this

basis.

II.

The Tripps next argue that the district court erred in

determining they had not created a genuine issue of material fact

regarding whether the $395 processing fee was required to be

included in the "amount financed." I agree.

TILA defines "finance charge," as is relevant here, as "the

sum of all charges, payable directly or indirectly by the person to

29
whom the credit is extended, and imposed directly or indirectly by

the creditor as an incident to the extension of credit." 15

U.S.C.A. § 1605(a) (West 1998). "The finance charge does not

include charges of a type payable in a comparable cash

transaction." Id. In order to ensure that the finance charge

disclosed to the consumer is the actual cost of obtaining credit,

TILA prohibits a creditor from including a finance charge as an

element of the "amount financed." See 12 C.F.R. § 226.18

(requiring disclosure and itemization of, inter alia, the finance

charge and the amount financed).

I believe that the Tripps created a genuine issue of material

fact regarding whether, at the time they purchased their vehicle,

CFAW was charging the $395 processing fee to every customer; and

for that reason, I believe they also created a genuine issue of

material fact regarding whether CFAW should have disclosed the $395

processing fee as part of the finance charge. Doe testified at a

deposition in another case in April 1999 that "the services [CFAW

provides in exchange] for the processing fee relate only to the

title documents," and that the fee is charged on every sale because

CFAW needs to ensure that the lien is properly recorded on the

title. J.A. 178. Doe explained that his endorsement of a check

received from another lender "guarantees lien and title delivered

to" that lender. J.A. 179. However, Doe also testified that if

the customer paid cash – as opposed to borrowing money from CFAW or

30
another lender – Doe "would give [the customer] the title

documents," let them do the title work, and not charge them the

processing fee. J.A. 179. At that point in the deposition, CFAW's

lawyer requested a break and conferred with Doe. When the

deposition continued, Doe testified that he had come to realize,

after reviewing documents, that his prior testimony was a mistake

and that in fact the processing fee was charged in every case.

In a deposition in the present case taken in May 2001, Doe

reiterated that the $395 processing fee is charged regardless of

how the customer paid for his car. And, the summary judgment

record includes what CFAW contends is paperwork for the sales CFAW

made for the months surrounding the Tripp transaction, which CFAW

maintains shows that the processing fee was charged to every

customer, even when there was no lien to be recorded.

Nevertheless, I believe that a reasonable factfinder could credit

Doe's initial testimony that if the customer paid cash--as opposed

to borrowing money from CFAW or another lender--Doe would not

charge them the processing fee, and discredit Doe's contrary

testimony as being simply the result of CFAW's counsel's legal

advice. Cf. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389

(7th Cir. 2000) (explaining that when deponent changes his

deposition testimony, it is for the jury to decide which testimony

to believe); Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103

(2d Cir. 1997) (explaining that even when a deponent withdraws his

31
previous deposition testimony, the withdrawn testimony remains part

of the record).

If CFAW did not charge the processing fee in sales with no

lien, then CFAW did not charge the fee in cash transactions that

were comparable to the Tripps' and the fee should have been

included as part of the finance charge. Although CFAW could still

maintain that it charged the fee in comparable transactions because

it charged the fee to customers who borrow from outside lenders and

pay with cashier's checks, those transactions are not comparable to

the Tripps', in my view. In Doe's April 1999 deposition, he

testified that CFAW charges the processing fee to buyers paying

with cashier's checks from outside lenders because CFAW's

endorsement of those checks acts as its guarantee that the lien

will be properly recorded. Because no such guarantee was involved

in the Tripps' transaction, it cannot be said as a matter of law

that these transactions were comparable to the Tripps'.

Relying on Alston v. Crown Auto, Inc., 224 F.3d 332 (4th Cir.

2000) (per curiam), CFAW argues the transactions that did not

involve a lien represented only a small minority of its sales, and

it need not charge the fee in every transaction for it to be

properly considered part of the amount financed rather than part of

the finance charge. See Alston, 224 F.3d at 334 (holding that

processing fee was not finance charge when general practice was to

charge the fee regardless of whether customer paid with cash or

32
credit). But, Alston is distinguishable from the present case in

that the critical fact in Alston was that the seller's general

policy was to charge the fee to everyone; the two cash customers

who did not pay the fee had individually negotiated for that

arrangement. See id. If CFAW's policy was not to charge the fee

in no-lien sales, however, then the fee was not generally charged

in comparable cash transactions, and it should have been included

as part of the finance charge. I therefore would reverse the

district court's grant of summary judgment against the Tripps on

this claim.

III.

The district court, having granted summary judgment on all of

the Tripps' federal claims, declined to exercise supplemental

jurisdiction over their state claims. See 28 U.S.C.A. § 1367(c)(3)

(West 2006). Because I would reverse the grant of summary judgment

on the TILA claim, I would also reverse the district court's

refusal to exercise supplemental jurisdiction on the state law

claims. See Gruenke v. Seip, 225 F.3d 290, 308 (3d Cir. 2000).

IV.

In sum, I would reverse the district court's grant of summary

judgment on the TILA claim that the $395 processing fee was

required to be included in the "amount financed," vacate the

33
district court's dismissal of the state law claims, and remand the

TILA and state law claims to the district court for further

proceedings. For the reasons expressed in Part I of my opinion and

Parts III(C) and IV of the majority opinion, I would otherwise

affirm the district court's order granting summary judgment against

the Tripps.

34