Malinee B. Virachack Ritnarone T. Virachack, and Rachelle Harvey v. University Ford, Dba: Bob Baker Ford

410 F.3d 579, 2005 U.S. App. LEXIS 9219, 2005 WL 1189654
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 20, 2005
Docket03-55852
StatusPublished
Cited by7 cases

This text of 410 F.3d 579 (Malinee B. Virachack Ritnarone T. Virachack, and Rachelle Harvey v. University Ford, Dba: Bob Baker Ford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malinee B. Virachack Ritnarone T. Virachack, and Rachelle Harvey v. University Ford, Dba: Bob Baker Ford, 410 F.3d 579, 2005 U.S. App. LEXIS 9219, 2005 WL 1189654 (9th Cir. 2005).

Opinions

NOONAN, Circuit Judge:

Malinee B. Virachack and Ritnarone T. Virachack (the Virachacks) appeal the district court’s grant of summary judgment to University Ford, a California corporation doing business as Bob Baker Ford, in their action under the Truth In Lending Act (TILA), 15 U.S.C. § 1601 et seq. Holding that Bob Baker Ford did not fail to disclose the total finance charge, we affirm the judgement of the district court.

FACTS

On November 18, 2001, the Virachacks bought a Ford Explorer from Bob Baker Ford. The purchase was partly on credit. Bob Baker Ford made the following statement in the Retail Sales Installment Contract executed by the Virachacks,

Federal Truth-In-Lending Disclosure

ANNUAL PERCENTAGE RATE The cost of your credit as a yearly rate. FINANCE CHARGE The dollar amount the credit will cost you. Amount Financed The amount of credit provided to you or on your behalf. Total of Payments The amount you will have paid after you have made all payments as scheduled. Total Sale Price The total cost of your purchase, including your down payment of $4303.14 is

0.90% $417.47(e) $22615.33 $23032.80(e) $27335.94(e)

(e) = estimate

The contract also stated that the Virachacks would make monthly payments of $479.85 for 48 months. The contract also reflected a sales tax of $1,748.47, based on the “cash price” of the vehicle of $23,268.

According to the affidavit of Nathaniel Torres, the finance manager of Bob Baker Ford, on the day the Virachacks bought the Explorer, Ford Motor Company was offering a $2,000 rebate to certain customers buying that model and year vehicle, but was not offering this rebate to customers buying on credit at the 0.9% rate. The availability of the rebate also depended, in part, on the geographical area in which the customer resided. The possibility of the rebate was not mentioned in the “Federal Truth-In-Lending Disclosure” of the contract.

According to Torres, had the Virachacks “desired a factory rebate and financing through Bob Baker Ford, they could have entered into a retail installment contract with Bob Baker Ford at a non-promotional interest rate offered by Ford Motor Credit Company, or they could have entered into a retail installment contract with Bob Baker Ford at whatever interest rate, promotional or not, was offered by any one of the other banks or finance companies to whom we regularly sell contracts.”

PROCEEDINGS

The present suit began as a class action in the Superior Court for the County of San Diego. Bob Baker Ford transferred it to the district court. By stipulation of the parties, the Virachacks were substituí[581]*581ed for the original plaintiff, who was, discovered to have entered a transaction with Bob Baker Ford where the rebate option was not available. The Virachacks alleged that the $2,000 cash rebate they might have received if they had paid cash should have been disclosed as part of the finance charge, and that the failure to disclose, violated the TILA, 15 U.S.C. § 1638(a)(2),(3), (4), and (5). They sought for themselves and for each member of the plaintiff class damages not to exceed the statutory maximum of the lesser of $500,000 or 1% of the defendant’s net worth. Id. at § 1640(a)(2)(b).

After discovery, each side moved for summary judgment. Granting summary judgment to Bob Baker Ford, the district court stated:

The reality of plaintiffs’ transaction is that they were given a “discount” on the market interest rate in order to induce them to purchase their vehicle. Indeed, plaintiffs’ own separate statement of facts posits that the promotional rate is below the market interest ■ rates The cash rebate is not a cost of credit imposed upon plaintiffs.' Rather, the rebate is an option made available to both cash and credit purchasers in order to induce the purchase of Ford vehicles at a price that would otherwise be unavailable to those consumers. In essence, the promotional interest rate is simply a different form of the cash rebate in that both the rebate and the interest rate are forms of subsidizing the market price of the vehicle offered to consumers in order to generate sales. Thus, the rebate is a “discount” made available to consumers who wish to receive the promotional interest rate but in the form of the reduced APR rather than in cash. Therefore, plaintiffs have received the “discount” made available to cash and other credit purchasers illustrating that the forgone rebate- is not a condition of the extension of credit. See 12 C.F.R. Pt. 226, Supp. I, Comment 4(a)(i)(B) (discount available to both cash and credit consumers not a finance charge). Consequently, the record does not support plaintiffs’ argument that the forgone rebate is imposed as a condition of the extension of credit or that the rebate is being offered to induce purchases by means other than credit. Therefore, the court concludes that the cash rebate is not part of plaintiffs’ cost of credit and need not be disclosed.

Virachack v. Univ. Ford, 259 F.Supp.2d 1089, 1091 (S.D.Cal.2003).

The Virachacks appeal.

ANALYSIS

The case is governed by a statute with a broad purpose, “the informed use of credit” by consumers. 15 U.S.C. § 1601(a). The statute’s carefully drawn terms are rendered even more precise by the regulations issued ’by the Federal Reserve Bank, the agency entrusted with the implementation of this law.

The statute defines “finance charge” as “the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit. The finance charge does not include charges of a type payable in a comparable cash transaction.” 15 U.S.C. § 1605(a).

The statutory definition does not embrace a rebate that is withheld. A charge is a request for payment. A rebate is a reduction in payment. It is to turn topsyturvy to contend that a rebate that is not given is a hidden charge.

The Virachaks’ ease looks less implausible under Regulation Z of the Federal Reserve Bank. This authoritative interpre[582]*582tation of the statute lists among examples of finance charges the following: “Discounts for the purpose of inducing payments by a means other than the use of credit.” FRB Regulation Z, 12 C.F.R. § 226.4(b)(9) (2004). How can a discount be a charge? It cannot be. What the Federal Reserve Bank means is that the presence of a discount for a cash transaction is an index that more is being charged for a credit transaction. The Virachacks contend that a rebate for cash on the purchase price is functionally the same as a discount for cash. The rebate is an index that more is being charged for credit. They refer to the Official Staff Commentary on the regulations:

The seller of land offers individual tracts for $10,000 each. If the purchaser pays cash, the price is $9,000, but if the purchaser finances the tract with the seller the price is $10,000.

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410 F.3d 579, 2005 U.S. App. LEXIS 9219, 2005 WL 1189654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malinee-b-virachack-ritnarone-t-virachack-and-rachelle-harvey-v-ca9-2005.