Filed: July 21, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2204
(CA-98-54-4)
Lee Polk,
Plaintiff - Appellant,
versus
Crown Auto, Incorporated,
Defendant - Appellee.
O R D E R
The court amends its opinion filed June 28, 2000, as follows:
On the cover sheet, section 1 -- the status is changed from
“UNPUBLISHED” to “PUBLISHED.”
On the cover sheet, section 6 -- the status line is corrected
to read “Affirmed by published per curiam opinion.”
On page 2, section 1 -- the reference to the use of
unpublished opinions as precedent is deleted.
- 2 -
On page 2, third full paragraph, lines 12-13, and page 3,
first full paragraph, line 4 -- “June 26, 2000" is corrected to
read “June 28, 2000.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEE POLK,
Plaintiff-Appellant,
v. No. 99-2204
CROWN AUTO, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Norman K. Moon, District Judge.
(CA-98-54-4)
Argued: June 9, 2000
Decided: June 28, 2000
Before LUTTIG and KING, Circuit Judges, and
Richard L. WILLIAMS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Dean Domonoske, Chapel Hill, North Carolina,
for Appellant. James A.L. Daniel, DANIEL, VAUGHAN, MEDLEY
& SMITHERMAN, P.C., Danville, Virginia, for Appellee. ON
BRIEF: Elmer R. Woodard, Danville, Virginia, for Appellant. Robert
J. Smitherman, Elizabeth B. Carroll, DANIEL, VAUGHAN, MED-
LEY & SMITHERMAN, P.C., Danville, Virginia, for Appellee.
_________________________________________________________________
_________________________________________________________________
OPINION
PER CURIAM:
On February 9, 1998, Lee Polk purchased a truck from Crown
Auto. On March 10, 1998, he voluntarily returned it. Polk sued
Crown Auto for various violations of the Truth-in-Lending Act
("TILA") and of Virginia law arising out of the sale of the truck.
Crown Auto filed a counterclaim for breach of contract. The district
court granted summary judgment to Crown Auto on Polk's claims and
judgment to Crown Auto on the breach of contract claim. Polk now
appeals the summary judgment on his claims. For the reasons below,
we affirm.
I.
Polk argues that Crown Auto violated TILA, Virginia usury law,
and the Virginia Consumer Protection Act ("VCPA") when it sold the
truck to him. We address each claim below.
A.
Polk argues that the district court erred when it rejected his claim
that, under TILA, Crown Auto should have disclosed an $85.00 pro-
cessing fee as a "finance charge." See 15 U.S.C. § 1638(a)(3) (requir-
ing a seller to disclose "finance charges"). However, we conclude that
the district court did not err in finding that Polk did not present evi-
dence sufficient to refute Crown Auto's claim that the $85.00 pro-
cessing fee was generally charged in "comparable cash transactions,"
see 15 U.S.C. § 1605(a) ("The finance charge does not include
charges of a type payable in a comparable cash transaction."). There-
fore, the $85.00 processing fee was not a "finance charge" under
TILA, and Crown Auto was not required to disclose it as such. See
Alston v. Crown Auto, Inc., No. 99-1944, at *4-*5 (4th Cir. June 28,
2000).
2
Polk also argues that Crown Auto violated TILA when it failed to
make credit disclosures in writing, in a form that he could keep before
consummation of the sale. See 12 C.F.R.§ 226.17; see also Chrisom
Polk v. Crown Auto, Inc., No. 99-2539 (4th Cir. June 28, 2000). How-
ever, because this claim was not properly raised in the district court
or properly appealed to this court, we will not review it.1
B.
Polk also argues that the district court erred when it granted sum-
mary judgment to Crown Auto on his claim that the loan for the truck
was usurious. Polk claims that Crown Auto charged him undisclosed,
and thus usurious, interest because it did not pay the $26.50 allotted
for title and registration fees to the Department of Motor Vehicles.
See also Alston v. Crown Auto, Inc., No. 99-1944, *5-*6 (4th Cir.
2000) (Alston claiming that an excessive late fee constituted undis-
closed interest, thereby making the loan usurious under Virginia law).
That is, according to Polk, Crown Auto was permitted to use the
$26.50 only for title and registration fees, and when it did not, its
retention of the money constituted additional undisclosed interest.
The district court held that the loan was not usurious because the
$26.50 was properly disclosed in the contract, Crown Auto was no
longer obligated to pay the title and registration fee after Polk
returned the vehicle, and that Crown Auto merely needed to refund
the $26.50. We agree.
Crown Auto did initiate the registration process, but because Polk
returned the truck before Crown Auto was required by law to then
register the truck in Polk's name, Crown Auto did not complete the
registration process and did not pay the $26.50 to the Department of
Motor Vehicles. Thus, it was only through Polk's action, returning the
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1 Several claims Polk now raises on appeal were not raised in his origi-
nal complaint. They were raised only in his amended complaint, after the
district court had denied his motion to amend his original complaint.
Polk appealed only the district court's order addressing the original com-
plaint, and did not appeal the district court's order denying his motion to
amend. Therefore, those claims raised only in Polk's amended complaint
are not properly before this court.
3
truck, that Crown Auto stopped the registration process. Polk does not
claim that the $26.50 fee was an improper charge at the time the con-
tract was made, and the parties have stipulated that Crown Auto
reduced the amount of its judgment award by $26.50 to reimburse
Polk for the unused fee, see Appellant's Br. at 8. Therefore, we can-
not conclude that the district court erred in holding that the $26.50
was not usurious undisclosed interest at the time the contract was made.2
C.
Polk argues that the district court also erred when it granted sum-
mary judgment to Crown Auto on his claim that Crown Auto violated
the VCPA. Polk claims that Crown Auto violated section 59.1-
200(13) of the VCPA when it charged him an unlawfully excessive
ten-percent fee for late payments. See also Alston v. Crown Auto, Inc.,
No. 99-1944, *8-*10 (4th Cir. 2000) (discussing Alston's identical
argument that an unlawful late fee violated Va. Code§ 59.1-200(13)).
It is undisputed that Polk never made a late payment and therefore
never paid the excessive ten-percent late fee that he argues constitutes
the violation of the VCPA.
The district court rejected Polk's claim because Polk did not "suf-
fer[ ] loss as the result of a violation" of the VCPA, as is required to
initiate an action for damages. Va. Code § 59.1-204(A) ("Any person
who suffers loss as the result of a violation of this chapter shall be
entitled to initiate an action to recover actual damages . . . ."). We
conclude that, because Polk alleges no loss as a result of the violation,
the district court did not err when it granted summary judgment to
Crown Auto on this claim.
Polk also argues that Crown Auto violated a separate provision of
the VCPA when it failed to properly disclose to him that the vehicle
was being sold "as is," without a warranty. See Va. Code § 46.2-
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2 Because we conclude that the district court properly rejected Polk's
usury claim, we also reject Polk's claim on appeal that the judgment to
Crown Auto could not include usurious interest.
4
1529.1(B). However, we decline to review this claim because it was
not properly raised in the district court or properly appealed to this court.3
For the reasons stated herein, we affirm the judgment of the district
court.
AFFIRMED
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3 Polk also argues that he had the right to cancel the sale under section
46.2-1529.1(C), but this claim was also not properly raised in the district
court.
5