The opinion of the court was delivered by: District Judge Susan J. Dlott
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON LIABILITY
This matter is before the Court on Plaintiffs' Motion for Summary Judgment on Liability (doc. 17). Plaintiffs have sued the defendant, an automobile dealership, for violations of the Truth in Lending Act and civil conversion after the dealership rescinded their contract for the purchase of a used automobile. The Court heard oral argument on Plaintiffs' motion on March 1, 2007. For the following reasons, the Court hereby GRANTS Plaintiffs' motion as to Count I of the Complaint and also DISMISSES Count II of the Complaint.
This case arises from Plaintiffs Brian and Jennifer Patton's purchase, or attempted purchase, of a used automobile from Defendant Jeff Wyler Eastgate, Inc. ("Wyler Eastgate"). On November 10, 2005, the Pattons visited Wyler Eastgate and entered into a transaction to purchase a used 2003 Ford Windstar minivan. The Pattons intended to use the vehicle primarily for personal, family, or household purposes.
As part of their transaction, the parties each signed a Retail Installment Sale Contract ("the Installment Contract"). The Pattons were expressly identified as the "Buyer (and Co- Buyer)" and Wyler Eastgate was expressly identified as the "Creditor-Seller" in the Installment Contract. An entity called "Consumer Portfolio Services" was identified as the "other owner" which was defined in the Installment Contract as "a person whose name is on the on the title to the vehicle but does not have to pay the debt." The Installment Contract listed the financial terms of the transaction in a section entitled "Federal Truth in Lending Disclosures" as follows:
19.95% annual percentage rate ("APR"), $10971.10 finance charge, $18,664.70 total financed, $29,635.80 in total payments, 60 payments of $493.93 required, and $31,365.80 total sale price. Under the terms of the Installment Contract, the Pattons agreed to pay the "Creditor-Seller . . . the Amount Financed and Finance Charge according to the payment schedule" stated therein.
The Installment Contract also contained a "No Cooling Off Period" section which read as follows:
State law does not provide for a "cooling off" or cancellation period for this sale. After you sign this contract, you may only cancel it if the seller agrees or for legal cause. You cannot cancel this contract simply because you change your mind. . . . Finally, the Installment Contract contained a merger clause which stated in relevant part:
HOW THIS CONTRACT CAN BE CHANGED
This contract is the entire agreement between you and us relating to this contract. Any change in this contract must be in writing and we must sign it. No oral changes are binding.
The Installment Contract was signed by Wyler Eastgate as Seller and by the Pattons as the Buyer and Co-Buyer.
The parties also signed a "Purchase Spot Delivery Agreement" as part of the transaction. The Purchase Spot Delivery Agreement stated in relevant part as follows:
The Dealership is permitting you to take possession of the above listed vehicle prior to financing approval being obtained. This is known as "Spot Delivery." Although you are being permitted to take possession of the above listed vehicle, you understand that financing for your purchase has not been finalized. You and the Dealership intend that financing will be obtained either directly from a third party or the Dealership will assign to a third party the Retail Installment Contract that you signed to complete the purchase transaction.
In the event the Dealership is unable to obtain third party financing approval or, if applicable, assign the Retail Installment sales Contract to a third party within 45 days of the above listed date, you shall immediately, upon being notified by the Dealership, return the vehicle or pay the Dealership the balance due as reflected in the Retail Buyers Order. * * * *
This Purchase Spot Delivery Agreement is to be made part of the Retail Buyers Order for this transaction and is incorporated into that document by reference herein.
The Buyers' Order referenced in this contract, which was also signed by the parties, identified the make, model and serial number of the vehicle being purchased and listed the base price, fees, and trade allowance for the vehicle. Neither the Purchase Spot Delivery Agreement nor the Installment Contract contain language which would incorporate the terms of one agreement into the other. The Pattons state in their joint affidavit that they did not read the Purchase Spot Delivery Agreement before signing it. They further state that no one from Wyler Eastgate advised them as to the form's purported intent. However, at her earlier deposition, Jennifer Patton had testified ...