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Janice Mack v. Bobbin Trace Automotive

November 29, 2011


The opinion of the court was delivered by: Robert L. Hinkle United States District Judge


This case arises from the defendant automobile dealer's conditional sale of a used car to the plaintiff. The dealer delivered the car to the plaintiff pending satisfaction of the condition: a third-party's agreement to finance the transaction on specific terms. When third-party financing could not be arranged, the dealer demanded the car's return, as required by the contract's plain terms. The plaintiff refused to return the car and instead filed this action. The plaintiff asserts that the contract requires the dealer to itself provide financing-even though that is not what the contract says-and asserts that the dealer has violated federal and state consumer-protection statutes. The dealer has counterclaimed for conversion and for replevin of the car. Each side has moved for summary judgment. This order denies the plaintiff's motion and grants the dealer's motion in part.


The plaintiff is Janice Mack. The defendant is Bobbin Trace Automotive, LLC, which does business as Legacy Toyota of Tallahassee. Ms. Mack and Legacy entered a conditional sales contract on February 27, 2009. The terms of the contract were set out in three documents executed on that date.

First, the "Buyer's Order" identified the car-a 2005 Avalon-and set out the price, other charges, and down payment. The Buyer's Order also said:

If Purchaser is financing this transaction, it is conditioned upon approval of Purchaser's proposed retail installment sale contract as submitted to or through the Dealer. If that proposed retail installment sale contract is not approved under the terms agreed to with the Dealer, Purchaser may cancel this Invoice and any down payment and/or trade-in Purchaser submitted will be returned to Purchaser, provided that any vehicle delivered by the Dealer pursuant to this Invoice is returned to the Dealer in the same condition as delivered to Purchaser, normal wear and tear excepted, within twenty-four hours of written oral notice to Purchaser of the credit denial.

Buyer's Order, ECF No. 12-4, at 2 ¶ 11.

Second, the "Retail Installment Sales Contract" set out specific financing terms and included all disclosures required by the Truth in Lending Act. The document included two cancellation sections. The first was brief and required Ms. Mack's separate signature; the point was to ensure Ms. Mack's knowledge of the second, more complete cancellation provision set out in the smaller print on the back of the document. The first section said:

SELLER'S RIGHT TO CANCEL. If Buyer and Co-buyer sign here, the provisions of the Seller's Right to Cancel section on the back, which gives the Seller the right to Cancel with 30 days, will apply.

Retail Installment Sales Contract, ECF No. 12-2, at 2 of 4. The second cancellation section said:

Seller's Right to Cancel

a. Seller agrees to deliver the vehicle to you on the date this contract is signed by Seller and you. You understand that it may take a few days for Seller to verify your credit, locate financing for you on the exact terms shown on the front of this contract, and assign this contract to a financial institution. You agree that Seller has the number of days stated on the front of this contract to assign this contract. You agree that if Seller is unable to assign this contract within this time period to any one of the financial institutions with whom Seller regularly does business under an assignment acceptable to Seller, Seller may cancel this contract.

b. If Seller elects to cancel per Paragraph a above, Seller will give you written notice (or in any other manner in which actual notice is given to you). In that event, you may have the option of negotiating and signing a new contract with different financing terms (for example, a larger down payment, a higher annual percentage rate, a required cosigner, etc.) or you may pay with alternate funds arranged by you.

c. Upon receipt of such notice, you must immediately return the vehicle to Seller in the same condition as when sold, reasonable wear and tear excepted. Seller must give you back all consideration Seller has received in accordance ...

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