Bengal Motor Co. v. Cuello

121 So. 3d 57, 2013 WL 1980147, 2013 Fla. App. LEXIS 7810, 38 Fla. L. Weekly Fed. D 1088
CourtDistrict Court of Appeal of Florida
DecidedMay 15, 2013
DocketNo. 3D11-1336
StatusPublished

This text of 121 So. 3d 57 (Bengal Motor Co. v. Cuello) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bengal Motor Co. v. Cuello, 121 So. 3d 57, 2013 WL 1980147, 2013 Fla. App. LEXIS 7810, 38 Fla. L. Weekly Fed. D 1088 (Fla. Ct. App. 2013).

Opinion

SUAREZ, J.

Appellant/Cross-Appellee Bengal Motor Company, d/b/a Maroone Honda (“Ma-roone”) appeals from a final summary judgment in favor of Appellee/Cross-Ap-pellant Michelle Cuello (“Cuello”) on count two of Cuello’s First Amended Complaint, while Cuello cross-appeals from the final summary judgment in Maroone’s favor on counts one, three, four and five of the First Amended Complaint. Our standard of review on final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). We affirm, on Cuello’s cross-appeal, the trial court’s grant of final summary judgment in favor of Maroone on counts one, three and four of the Complaint.1 We address only the issue raised in count two of Cuello’s First Amended Complaint and presented on Maroone’s appeal from final summary judgment. On this issue, we affirm that part of the final judgment, limited to the specific facts of this case, finding that Maroone’s use of conditional language in its Bailment Agreement and Retail Buyers Order violated the “finality” requirement of the Truth in Lending Act (“TILA”)2, as applied to its separate offer of credit terms, and was thus, as a matter of law, a violation of the Florida Motor Vehicle Retail Sales Finance Act (“FMVRSFA”).3 We reverse, however, that part of the final summary judgment granting monetary damages to Cuello as a result of that violation.

Cuello sought to buy a car from Ma-roone. She signed three documents at the dealership: 1) the Retail Buyer’s Order (“RBO”), which states that on a credit transaction the purchaser’s offer is not accepted until approved by the dealer and a bank or finance company, that Maroone retains title until all funds owed are paid, and if financing is not approved, Maroone can terminate the agreement at its option; 2) the Retail Sales Installment Contract (“RISC”), subject to TILA, and which contains financing terms to be submitted to the financing company for approval; and [60]*603) the Bailment Agreement for Spot Delivery, which allowed Cuello to drive the vehicle off the dealer’s lot that same day. The Bailment Agreement states that the car remains dealer property pending financing approval and provides that, if financing is not approved, the purchaser may either sign a new RISC agreement with new finance terms or return the vehicle. The Bailment Agreement also states that it is attached to and forms part of the sales agreement. The RBO indirectly references the other documents.

After signing all three documents, the dealership allowed Cuello to leave with the car that day (a practice widely referred to as “spot delivery”). Subsequently, Cuello was not approved for financing at the terms recited in the RISC. The dealership notified her that she could sign a second RISC with different financing terms and a higher annual percentage rate, or she could return the vehicle to the dealership. Cuello did neither, and Ma-roone repossessed the vehicle.

Cuello sued Maroone, alleging 1) damages for common law fraud in the inducement; 2) damages for violation of the FMVRSFA; 3) damages for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”);4 4) injunctive and declaratory relief under FDUTPA; and, 5) damages for wrongful repossession.5 The trial court granted summary judgment in Maroone’s favor on all five of Cuello’s claims. On motion for rehearing, however, the trial court allowed Cuello to re-plead count two under FMVRSFA in light of preemptive TILA requirements.6,7

The case was then reassigned to a different circuit court judge, who heard arguments on both parties’ motions for summary judgment based solely on the allegations in count two of the Second Amended Complaint. The trial court held that, as a matter of law, the conditional language contained in the Buyer’s Order and Bailment Agreement negated the finality requirement in TILA for the financial disclosures made in the RISC, constituting a TILA violation and, consequently, a per se violation of FMVRSFA. Although Cuello incurred no actual monetary damages, the trial court granted to Cuello the amount of finance fees authorized by section 520.212(2) charged by reason of Maroone’s “violation.”

Although Maroone provided in the RISC all TILA disclosures required by federal law, the trial court’s concern was that the RISC did not refer to or mirror the conditional language of the RBO and Bailment Agreement, i.e., that absent from the RISC was language notifying the buyer that the consummation of the deal was contingent on the buyer being approved for third-party financing at the rates disclosed in the RISC. Cuello argued, and the trial court agreed, that the conditional language of the other two documents compromised the “finality” of the RISC agreement pursuant to TILA, thus it was not a “final” statement of the deal under TILA and the consumer was thus not contractually obligated. Such a lack of finality under TILA, Cuello argued, is a per se violation of the Florida FMVRSFA statute. We agree.

[61]*61Regulation Z of TILA requires that the creditor disclose the identity of the creditor, the amount being financed, the annual percentage rate, the total sale price, and the total amount of payment. 15 U.S.C. § 1638(a); 12 C.F.R. § 226.18. These disclosures must be made “before credit is extended,” see 12 C.F.R. § 226.17(b); see also 15 U.S.C. § 1638(b)(1), a point known as “consummation.” “Consummation” refers to the time that a consumer becomes contractually obligated on a credit transaction. 12 C.F.R. § 226.2(a)(13). Regulation Z also provides that, when determining the point at which a consumer becomes contractually obligated to a credit agreement, state law should govern. See 12 C.F.R. § 226, Official Staff Commentary 2(a)(13). However, although state law is determinative of when a contractual relationship is created it has nothing whatsoever to do with how the transaction is to be characterized for TILA purposes; that question is governed by federal law. And the federal courts have held that TILA’s disclosure requirements become effective at the point in the transaction at which the buyer signs a credit agreement and becomes obligated to pay on it, regardless of the level of the creditor’s commitment. Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1066 (11th Cir.2004).

Here, two of the three documents that Cuello signed, the Buyer’s Order and the Bailment Agreement for spot delivery, were unambiguous that the sale transaction was contingent upon her securing financing at the rates provided in the RISC.

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Cite This Page — Counsel Stack

Bluebook (online)
121 So. 3d 57, 2013 WL 1980147, 2013 Fla. App. LEXIS 7810, 38 Fla. L. Weekly Fed. D 1088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bengal-motor-co-v-cuello-fladistctapp-2013.