By Shelley B. Fowler*
In this supposedly paperless world of ours, there is still a lot of paperwork involved when a customer buys a car from a dealership on credit. The dealership is primarily responsible for preparing the documents that include, at a minimum, a purchase agreement, a finance agreement, a credit application, and a title application. The dealership’s correct completion and filing with the appropriate government agency of the title application is important for both parties since the title, when issued, will recognize the buyer as the owner of the vehicle and the dealership (or the finance company) as the holder of a lien on the vehicle. But what happens when the dealership doesn’t hold up its end of the bargain and fails to file the title application, believing that it is excused from doing so by the buyer’s conduct? Read on.
On February 12, 2015, Ndeye Ndoye signed a purchase agreement to buy a used Cadillac from Major Performance LLC. She made a down payment of $3,500 and financed the remainder of the purchase price. Major Performance gave Ndoye the keys to the vehicle and a temporary tag and assigned the finance contract to Westlake Financial Services that same day. Ndoye apparently had trouble making her first payment by phone because Westlake had not approved the financing as of the date the first payment was due. Ndoye agreed with Westlake to make the first payment about three weeks later and did so by credit card. That same day, Major Performance, which had been requested to repurchase Ndoye’s finance contract, repossessed the car without ever having transferred title to the car to her. Three days later, Westlake reassigned the contract to Major Performance and noted that the account was current. Ndoye sued Major Performance for violations of the Ohio Consumer Sales Practices Act, fraud, conspiracy, conversion of her car, and conversion of money. Ndoye moved for partial summary judgment, and Major Performance moved for summary judgment.
Ndoye argued that Major Performance committed unfair and deceptive practices, in violation of the OCSPA, by failing to apply for and obtain title in her name in a timely manner, as required by Ohio law. The U.S. District Court for the Southern District of Ohio granted summary judgment for Ndoye on this claim. The court noted that it was undisputed that Major Performance did not apply for title in Ndoye’s name within 30 days of the date of sale and did not issue title to her within 40 days of the date of sale. The court rejected Major Performance’s argument that it was excused from performance because of Ndoye’s failure to make her first payment timely and her fraudulent misrepresentation of her hourly wage. The court found that, at most, these defenses relate to the question of damages, not to the issue of liability. The court refused to grant Major Performance summary judgment on Ndoye’s fraud, conspiracy, and conversion claims.
So, at least in Ohio, and I suspect in other states, a dealership’s belief that a car buyer has breached its contract with the dealership is an insufficient reason for a dealership to neglect its duty to file the title application. In this instance, at least with respect to the dealership’s liability, a bad excuse was no better than no excuse at all.
Ndoye v. Major Performance LLC, 2016 U.S. Dist. LEXIS 98727 (S.D. Ohio July 28, 2016).
*Shelley B. Fowler is a Managing Editor of the CARLAW, HouseLaw, PrivacyLaw, InstallmentLaw, and Spot Delivery publications. Shelley is located in the Hanover, Maryland office of Hudson Cook, LLP/CounselorLibrary.com. Shelley can be reached at 410-865-5406 or by email at rfowler@hudco.com.
