Lopes v. Fafama Auto Sales

2011 Mass. App. Div. 277, 76 U.C.C. Rep. Serv. 2d (West) 192, 2011 Mass. App. Div. LEXIS 75
CourtMassachusetts District Court, Appellate Division
DecidedDecember 8, 2011
StatusPublished
Cited by1 cases

This text of 2011 Mass. App. Div. 277 (Lopes v. Fafama Auto Sales) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopes v. Fafama Auto Sales, 2011 Mass. App. Div. 277, 76 U.C.C. Rep. Serv. 2d (West) 192, 2011 Mass. App. Div. LEXIS 75 (Mass. Ct. App. 2011).

Opinion

Gardner, J.

On October 24, 2005, defendant Fafama Auto Sales (“Fafama”) of Hopedale, Massachusetts sold plaintiff Antonio Lopes (“Lopes”) a used 1997 Chevrolet van for $4,950.00. Both parties signed a bill of sale and a licensed dealership reassignment of title. The bill of sale required Lopes to pay $1,200.00 as a down payment and the balance in eight monthly installments of $468.00, without interest. The first installment was due November 24, 2005. The agreement warned, “The “buyer’ understand [sic] and agree that, in the event of [sic] his payment is late, the car above will be repossessed for nonpayments.” The agreement also contained a warranty for thirty days or 1,250 miles, whichever occurred first.

Lopes, a Rhode Island resident, submitted an application for registration and title certificate with that state’s division of motor vehicles. The application listed Fafama as sole lienholder.

Lopes brought the vehicle for inspection in Rhode Island on November 19, 2005. It was rejected for problems with the radiator, torque converter, and clutch. The inspection report listed the odometer at 159,536 miles, which was 4,857 more miles than the total miles listed on the bill of sale. The warranty had thus expired. Lopes thereafter contacted Fafama’s president, Fabio Silveira (“Silveira”), who told Lopes that Fafama would not address the issues discovered in the inspection report. When Lopes arrived at the dealership, Silveira refused to see him. On November 25, 2005, Lopes paid his first, and only, monthly installment payment.

On January 5,2006, Lopes paid $1,221.00 to a repair shop for repairs of items that included those problems discovered during the inspection. The vehicle then passed inspection on January 7, 2006. Finally, on January 19, 2006, Lopes paid an additional $2,443.00 to correct a transmission issue.

On January 27, 2006, Fafama attempted, unsuccessfully, to repossess the vehicle. The Milford police department informed Silveira that he had failed to follow statutory notice requirements. Although the vehicle remained in Lopes’ possession, Fafama filed an affidavit of repossession, dated January 30, 2006, with the Massachusetts registry of motor vehicles, claiming that the van had been “lawfully repossessed under the terms of the valid agreement and not in conflict with the existing laws of the Commonwealth of Massachusetts.”

On February 3, 2006, Fafama sent Lopes a letter under the heading, “Rights of Defaulting Buyer under the Massachusetts Motor Vehicle Installment Sales Act.” [278]*278The letter stated that Lopes was in default for nonpayment; that he could cure the default by paying $1,604.00 by February 24,2006 to Fafama as secured creditor; and that if Lopes did not cure by that date, Fafama might bring suit to recover the debt or repossess the vehicle. Having received no payments, Fafama hired New England Recovery, which repossessed the van on March 12, 2006.

Lopes sent a G.L.c. 93A demand letter to Fafama, demanding payment of his repair costs, legal fees, and return of his down payment and installment payment, for a total of $6,507.84. Fafama offered to settle for $1,100.00. Lopes rejected the offer and brought suit on May 7,2008 for breach of contract, breach of warranty, and violation of G.L. c. 93A1 The trial was jury waived. Finding that Lopes brought the vehicle’s defects to Fafama’s attention only after the warranty had expired, the judge rejected Lopes’ breach of contract and warranty claims. The judge also rejected Lopes’ argument that because Fafama was not licensed as a sales finance company permitted to enter retail installment contracts under G.L.c. 255B, (a) the parties’ agreement was void, (b) Lopes was released from the contract's requirements, and (c) Fafama’s repossession was unlawful. Finally, the judge ruled that even if Fafama had violated G.L.c. 255B, such violation would not bar Fafama’s recovery of the outstanding debt or its repossession of the vehicle.

Lopes filed this Dist./Mun. Cts. R. A. D. A, Rule 8C, appeal, arguing that Fafama’s failure to register under G.L.c. 255B, §2 not only voided the contract, but also prevented Fafama from repossessing the vehicle under G.Lc. 255B, §§20A and 20B.

l.The trial judge did not err in ruling that, assuming G.L.c. 255B applies, Fafama’s failure to obtain a license under that chapter did not void the contract.

General Laws c. 255B governs retail installment sales of motor vehicles. Section 2 provides that, with the exception of institutions not here relevant, “[no] person shall engage in the business of a sales finance company without first obtaining from the commissioner [of banks] a license to carry on said business.” Specific remedies for violations are scattered throughout the statute. See G.L.c. 255B, §21 (violation of chapter punished by fine or imprisonment); G.L.c. 255B, §22 (violation of §§9-14 bars recovery of finance, delinquency, collection, or refinancing charge); G.L.c. 255B, §6 (violations of chapter as violation of G.Lc. 93A). The statute is silent, however, on the effect violations have on the underlying contract.

As a general rule, Massachusetts courts are reluctant to assume, in the absence of a specific legislative mandate, that the Legislature intended to effect a forfeiture of private contractual rights. Valley Stream Teachers Fed. Credit Union v. Commissioner of Banks, 376 Mass. 845, 852 (1978) (credit union’s violation of G.L.c. 171, §16 in failing to obtain approval of Commissioner of Banks for loan did not render void its contractual obligation). Decisions further “warn against the sentimental fallacy of piling on sanctions unthinkingly once an illegality is found.” Town Planning & Eng’g Assocs., Inc. v. Amesbury Specialty Co., 369 Mass. 737, 746 (1976). See Baybank v. Dirico, 1996 Mass. App. Div. 30, 32. Under the applicable standards set [279]*279out in Town Planning & Eng’g Assocs., Inc.,2 it is clear that the “vector of considerations” supports the trial court’s ruling that the contract was enforceable against Lopes. Id. at 746. Principal among these considerations is the fact that Lopes would enjoy an undeserved windfall if the contract were declared void. Baybank, supra at 33. Further, G.L.c. 255B is a consumer protection statute that affords purchasers of motor vehicles under retail installment sales contracts certain rights and remedies, including a defaulting buyer’s right to notice of default and to the redemption of the motor vehicle after repossession. See Marine Midland Bank, NA v. Moran, 1994 Mass. App. Div. 167, 168. Although Lopes is correct that Fafama, in failing to obtain a license, bypassed the Commissioner’s application review of its “financial responsibility, character, reputation, integrity and general fitness,” G.L.c. 255B, §2, the consumer protection policy underlying the statute would not be defeated by enforcing the contract. Nowhere does Lopes argue that, apart from its lack of a license, Fafama violated any of the above notification rights, or any other of the buyer’s rights, under G.L.C. 255B.

2. The trial judge did not err in concluding that Fafama could repossess the vehicle under the contract.

Fafama held an enforceable security interest in the vehicle.

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2011 Mass. App. Div. 277, 76 U.C.C. Rep. Serv. 2d (West) 192, 2011 Mass. App. Div. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopes-v-fafama-auto-sales-massdistctapp-2011.