Summary
reconsidering summary judgment and finding that disclosures in quadruplicate form contract were sufficient, where no evidence showed that plaintiff could not keep a copy of the contract
Summary of this case from Cannon v. Metro Ford, Inc.Opinion
IP 00-1340-C-T/G
December 3, 2001
B Clifford W Shepard Consumer Protection Law Office, Indianapolis, IN.
James P Buchholz Miller Carson Boxberger Murphy, Wayne, IN.
John F Ittenbach Sheeks Ittenbach Johnson, Indianapolis, IN.
F Bradford Johnson Sheeks Ittenbach Johnson, Indianapolis, IN.
This cause comes before the court on the Motion To Amend Order On Summary Judgment of Defendant Tom Wood Pontiac-GMC, Inc. ("Tom Wood"), in which Defendant asks the court to amend its Entry On Summary Judgment And Related Motions, dated July 30, 2001 ("Entry On Summary Judgment" or "Entry"), to include a statement which would allow an interlocutory appeal under 28 U.S.C. § 1292(b). The court heard oral argument on the motion on November 19, 2001. Upon hearing oral argument and a closer review of the parties' summary judgment papers, the court finds that reconsideration of its Entry On Summary Judgment is in order. Also, it is appropriate at this time to rule on Plaintiff's motion for class certification as against Tom Wood and Plaintiff's motion for leave to file a summary judgment motion against Charles R. Sheeks.
Discussion
Because entry of judgment has not been made, Rule 54(b) of the Federal Rules of Civil Procedure authorizes reconsideration of the court's Entry On Summary Judgment. Fed.R.Civ.P. 54(b) ("any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."); see Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993) ("[I]t is well established that a district court has the inherent power to reconsider interlocutory orders and reopen any part of a case before entry of final judgment.") (citing Marconi Wireless Tel. Co. v. United States, 320 U.S. 1, 47-48 (1943)).
1. Refusal to Disclose in Retainable Form Prior to Consummation Not Proved
The court presumes a familiarity with its Entry on Summary Judgment and thus does not repeat here the facts of this case or the summary judgment standard. One factual clarification is necessary, however. Though implicit, the Background Facts section of the Entry does not explicitly state that the Contract contained the disclosures required under the Truth In Lending Act ("TILA") and Regulation Z. There is, however, no dispute that the required TILA disclosures were contained within the Contract at the time it was presented to Ms. Spearman for her signature.
Upon reconsideration of the applicable legal authority and the facts as asserted and supported by the parties, the court finds that summary judgment should be entered in favor of Defendant Tom Wood and against Plaintiff Mary Spearman.
The court does not revisit its determination that the transaction at issue was consummated when Ms. Spearman signed the Contract.
Regulation Z which governs the form and timing of TILA disclosures provides in pertinent part:
(a) Form of disclosures.
(1) The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. . . .
(b) Time of disclosures.
The creditor shall make disclosures before consummation of the transaction.12 C.F.R. § 226.17(a) and (b). Ms. Spearman claims that Tom Wood failed to comply with these requirements because even though it showed her the TILA disclosures, it did not hand her a written copy of the disclosures separate from the copy of the Contract she was to sign prior to her signing the Contract.
In arguing that a creditor is required to give the consumer a physical copy in writing of the TILA disclosures, Ms. Spearman relies heavily on Polk v. Crown Auto, Inc., 221 F.3d 691 (4th Cir. 2000). In Polk, the car dealership explained the credit terms to the buyer but did not disclose the terms in writing in a form he could take with him.
After the parties consummated the credit transaction, the dealership gave the buyer copies of the retail installment sales contracts which contained the credit terms. Id. at 691. The buyer alleged the dealership violated TILA and Regulation Z by not disclosing the credit terms prior to consummation of the transaction. Id. at 692. The district court read subpart (a) independently of subpart (b) of § 226.17 and held that TILA and Regulation Z were satisfied where the dealership made the required disclosures in some form before consummation and later made the disclosures in writing in a form the buyer could keep. Id. The Fourth Circuit found that the district court erred and held that the dealership was required to make the TILA disclosures to the buyer in writing in a form that he could keep before consummation of the credit transaction. Id. The grant of summary judgment to the dealership was reversed and the case remanded for judgment in favor of the buyer. Id.
Some district courts have interpreted Polk as requiring that a creditor give a copy of the TILA disclosures to the consumer in a form she can keep prior to consummation of the transaction. See, e.g., Walters v. First State Bank, 134 F. Supp.2d 778, 781-82 (W.D.Va. 2001) (relying on Polk and holding bank violated Regulation Z where consumer was not given copy of credit contract which contained TILA disclosures until after she signed it); Holley v. Gurnee Volkswagen Oldsmobile, No. 00 C 5316, 2001 WL 243191, at *3 (N.D.Ill. Jan. 4, 2001) (citing Polk and stating "car dealers must give customers a copy of the [retail installment contract] they can keep before they sign it"); Lozada v. Dale Baker Oldsmobile, Inc., 197 F.R.D. 321, 337 (W.D.Mich. 2000) (stating that courts "have uniformly held that pre-consummation delivery of a copy of the disclosures is necessary to meet the requirements of the regulations" and citing Polk). Even assuming that this is a correct interpretation of Polk, where the credit contract contains the TILA disclosures, nothing in Polk requires a creditor to separate the consumer's copy of the credit contract from the other copies of the contract and give the copy to the consumer before the consumer signs the contract. And, such a requirement was rejected very recently in Diaz v. Joe Rizza Ford, Inc., No. 00 C 7082, 2001 WL 1360315 (N.D.Ill. Nov. 2, 2001).
The evidence in Diaz established that the defendant car dealer used a three copy-form of the retail installment contract which contained the TILA disclosures. The terms were negotiated, the form was filled out, and then the customer had the opportunity to review the form and sign it. The top copy was then separated from the other copies and given to the customer. The customer argued that this violated TILA and Regulation Z because she was not given a copy of the disclosures in a form she could keep prior to consummation. Diaz, 2001 WL 1360315, at *1. The court understood Regulation Z to require the car dealer to give the customer the TILA disclosures in a form she could keep before consummation of the transaction and concluded that Regulation Z was not violated. Id. The court found that the customer was informed about the credit terms and protected from changes in those terms because she had taken her copy, thus serving TILA's "overriding purpose" of promoting the informed use of credit and protecting consumers from changes in credit terms. Id. at *2. The court also found: "nothing to suggest that [the customer] could have not taken away all three copies or the top copy . . . without executing them, if she had so desired. And, she was in physical possession of all three copies when she signed." Id.
According to the court, there was no "meaningful distinction between separation of the copies before or after [the customer] signed." Id. Summary judgment was granted the defendant on the plaintiff's claim that she was not given timely disclosures required by TILA. Id. Diaz is consistent with an interpretation of Polk as requiring a creditor to give a copy of the TILA disclosures to the consumer in a form she can keep prior to consummation of the transaction. The Diaz customer had a copy of the TILA disclosures before she signed the retail installment contract, and she had an opportunity to review the credit terms before consummating the transaction. And, as the court in Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp.2d 535 (E.D.Va. 2001), explains, Polk does not state that the retail installment contract cannot be the document that the consumer may keep. Id. at 548-49. Indeed, the Federal Reserve Board's official staff commentary to Regulation Z provides that the disclosures may be made on the same document as the credit contract, provided they are segregated from the rest of the document. Official Staff Commentary on Regulation Z, 12 C.F.R. Pt. 226, Supp I, § 226.17 at 390.
The Federal Reserve Board's official commentary to Regulation Z is accorded great deference. See, e.g., Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980) (explaining that the Court "has often repeated the general proposition that considerable respect is due the interpretation given [a] statute by the officers or agency charged with its administration. . . . This traditional acquiescence in administrative expertise is particularly apt under TILA, because the Federal Reserve Board has played a pivotal role in setting [the statutory] machinery in motion. . . .") (internal quotations omitted); Clay v. Johnson, 264 F.3d 744, 748 (7th Cir. 2001) (stating that the Federal Reserve Board's official staff commentary to Regulation Z is "dispositive" unless "demonstrably irrational") (citing Milhollin, 444 U.S. at 565).
Furthermore, the court believes that Nigh's interpretation of Polk is correct: Polk is directed to the timing of the disclosures rather than the form of the disclosures. Nigh, 143 F. Supp.2d at 548 ("The Polk court's principal holding was that a (sic) auto dealership (or other creditor) cannot give a buyer/debtor a copy of his credit terms after the consummation of a transaction; the dealer must provide a detailed disclosure of the credit terms in writing before consummation of the transaction.") (Emphasis in Nigh). Nothing in Polk addresses the meaning of the language "in a form that the consumer may keep" in Regulation Z. Nigh, however, does address this issue.
In Nigh, the consumer claimed the defendant car dealer violated TILA and Regulation Z by failing to make the disclosures before consummation of the transaction. The consumer had visited the car dealership on three separate occasions in connection with the purchase of a truck. On the first visit, a representative of the dealer discussed the credit terms with him, then filled in the credit terms on a retail installment sales contract ("RISC") and had the consumer sign the RISC. The consumer returned on two separate occasions at which time the terms of the RISC were changed and he executed a new RISC. Nigh, 143 F. Supp.2d at 539. The consumer claimed the dealer violated TILA and Regulation Z because it did not provide him with a copy of the credit terms before he signed the RISCs. Id. He also argued that contemporaneous disclosure did not serve TILA's purpose as he could not "shop" around for a better interest rate. Id. at 539, 548.
The court rejected the claim that simply showing a consumer the disclosures on the credit contract prior to signature violates TILA and Regulation Z's timing requirement. Nigh, 143 F. Supp.2d at 549 n. 3. It held that giving the consumer the disclosures on the RISC before the consumer signs it complies with the timing requirement. Id. at 548-49. The judge explained that the RISC contained the required disclosures, the consumer had the opportunity to read the RISC before signing it and defer signing if he chose to shop for a better interest rate. Id. at 548-49 n. 3. The court rejected the argument that a creditor must provide the consumer a separate copy of the TILA disclosures before consummation of the transaction and held that providing the disclosures on the RISC complies with TILA. Id. Thus, Nigh holds that a creditor complies with the timing and form requirements of TILA and Regulation Z by providing the consumer with the required disclosures on the contract that he or she is to sign before the consumer signs the contract.
Nigh has been followed and cited with approval in subsequent decisions. The court in Tripp v. Charlie Falk Auto, No. CIV. 3:00CV512, 2001 WL 1105132, at *6 (E.D. Va. Aug. 22, 2001), relied on Nigh and held that providing consumers the TILA disclosures on the credit contract and giving them the opportunity to review them before signing satisfies TILA and Regulation Z. The court in Crowe v. Joliet Dodge Union Acceptance Corp., No. 00 C 8131, 2001 WL 811655, at *3 (N.D.Ill. July 18, 2001), also found Nigh's reasoning persuasive. The court, however, denied the defendant's motion to dismiss, citing the different standards of review between the motion to dismiss in that case and the summary judgment motion in Nigh.
Ms. Spearman cites Compton v. Altavista Motors, Inc., 121 F. Supp.2d 932 (W.D.Va. 2000), for the proposition that disclosure contemporaneous with consummation of the transaction is insufficient under TILA and Regulation Z. Compton does not so hold. The evidence in that case established that the buyer signed the credit contract, thus consummating the transaction, before she signed the form which the car dealer contended contained the required disclosure. Id. at 936. In addition, the form contained an inaccurate disclosure in violation of TILA. Id. Ms. Spearman also relies on Holley v. Gurnee Volkswagen Oldsmobile, No. 00 C 5316, 2001 WL 243191, at *3 (N.D.Ill. Jan. 4, 2001), as further support for her claim that Tom Wood violated Regulation Z's timing requirements by including the TILA disclosures in the Contract to be signed by her. In Holley, the TILA disclosures were made in the retail installment contract signed by the plaintiff. Id. Finding some question as to whether the disclosures were made "before" rather than "at the time of" consummation, the district court denied the defendant car dealer's motion for summary judgment. Id. But the Federal Reserve Board's official commentary to Regulation Z states that the disclosures need not be made by any particular time before consummation. Official Staff Commentary on Regulation Z, 12 C.F.R. § 226, Supp I, § 226.17 at 392. So, a disclosure made only a minute before consummation complies with the timing requirements. Thus, the appropriateness of the denial of summary judgment to the defendant car dealer in Holley is open to question.
On closer examination, the court reconsiders its previous determination that contemporaneous disclosure fails to comply with Regulation Z's timing requirements. Ms. Spearman has offered no legal authority which stands for the proposition that contemporaneous disclosure is insufficient and, neither TILA nor Regulation Z expressly prohibits contemporaneous disclosure. Rather, the official staff commentary seems to support the conclusion that contemporaneous disclosure is permissible.
Ms. Spearman correctly maintains, and this court repeatedly points out in its entries (see footnote 1, supra), that a district court's opinion has no precedential authority and is not binding on other courts. Courts may, however, consider the opinions of district judges. And, when a district court's decision is well-reasoned and based on sound legal interpretation, his or her decision may be persuasive. The decisions in Diaz and Nigh are well-reasoned and, in the undersigned's view, represent a better understanding of TILA and Regulation Z's timing and form of disclosure requirements than cases such as Walters v. First State Bank, 134 F. Supp.2d 778, (W.D.Va. 2001) and Lozada v. Dale Baker Oldsmobile, Inc., 197 F.R.D. 321 (W.D. Mich. 2000). Consideration of Diaz and Nigh, along with a closer examination of Polk and the language in TILA and Regulation Z, persuade me that my earlier conclusion that Ms. Spearman can prove that Tom Wood violated TILA and Regulation Z was mistaken.
The court agrees that Regulation Z requires a creditor to give the consumer the TILA disclosures in a form he or she can keep before consummation of the transaction. However, like the plaintiffs in Diaz and Nigh, Ms. Spearman has not shown and cannot show that Tom Wood failed to comply with this requirement. The uncontested evidence establishes that Tom Wood provided her with the Contract containing the TILA disclosures for her review before signing. The Contract, indisputably, was in writing, and was in quadruplicate form, with one copy for Ms. Spearman. Thus, the TILA disclosures were in writing and, unlike Plaintiff's counsel's example during oral argument of a poster on the wall, were in a form capable of being kept or taken away.
Ms. Spearman claims she did not know that one of the four copies of the Contract was her copy. The cited deposition testimony (Spearman Dep. at 119), however, does not support this claim. Instead, the cited testimony establishes merely that she did not know which one of the four copies was hers.
Counsel's poster example demonstrates that Regulation Z's language "in a form that the consumer may keep" is not rendered meaningless by providing the TILA disclosures to the consumer on the copy of the contract she is to sign before consummation of the transaction. And, as stated, the official commentary to Regulation Z allows the disclosures to be made on the same document as the credit contract. Official Staff Commentary on Regulation Z, 12 C.F.R. Pt. 226, Supp I, § 226.17 at 390. It would be senseless to require a creditor to prepare two identical credit contracts and first hand one to the consumer for her to keep and then hand the other to her for signature.
Ms. Spearman has not come forward with any evidence tending to suggest that the TILA disclosures were not in a form that she could keep. To state it differently, there is no evidence that she could not have kept or taken away a copy of the Contract containing the TILA disclosures before she signed it.
Because the court agrees that there is no "meaningful distinction" between separation of a consumer's copy from the other copies of a credit contract containing the TILA disclosures before or after signature, Ms. Spearman's contention that Tom Wood was required to provide her with a written copy of the disclosures separate from the copy of the Contract she was to sign prior to her signing is rejected. On reconsideration, the court finds that the evidence submitted in this case supports but one conclusion: Ms. Spearman cannot prove that Tom Wood failed to make the TILA disclosures in a form that she could keep before consummation of the transaction.
At oral argument defense counsel stated that Ms. Spearman testified during her deposition that a Tom Wood representative brought the Contract to her at her place of employment and waited while she looked over it and then she signed. While such facts might make Tom Wood's defense even stronger, the relevant page of Ms. Spearman's deposition has not been submitted to the court. In any event, these facts are not necessary to the conclusion that Ms. Spearman has not shown Tom Wood violated TILA and Regulation Z.
Therefore, on reconsideration, the court finds that Ms. Spearman has not come forward with facts sufficient to prove that Tom Wood violated the timing and form of disclosure requirements of TILA and Regulation Z. For this reason, the court finds that it should vacate that portion of its Entry On Summary Judgment granting partial summary judgment to Ms. Spearman, deny her motion for partial summary judgment and grant Tom Wood's motion for partial summary judgment.
2. No Actual Damages and No Entitlement to Statutory Damages
In any event, even if Ms. Spearman could marshal facts to establish a violation of TILA and Regulation Z, Tom Wood would still be entitled to partial summary judgment as it is apparent that she has suffered no actual damages and is not entitled to statutory damages under 15 U.S.C. § 1640(a). Ms. Spearman claims that Tom Wood failed to comply with the timing and form of disclosure requirements of TILA and Regulation Z in violation of 15 U.S.C. § 1638(b)(1) and 12 C.F.R. § 226.17(a) and (b). She testified in her deposition that she did not intend to shop around with any other bank or credit institution for more favorable credit terms before signing the Contract. (Spearman Dep. at 130.) Thus, she would be unable to prove actual damages caused by Tom Wood's alleged violation of TILA and Regulation Z. As a result, if she has a claim for damages, then it must be based on an entitlement to statutory damages. Brown v. Payday Check Advances, 202 F.3d 987 (7th Cir.), cert. denied, 531 U.S. 820 (2000), however, compels the conclusion that statutory damages are unavailable for Tom Wood's alleged TILA violation. The Brown plaintiffs alleged that the defendants violated § 1632(a), § 1638(a)(8) and § 1638(b)(1) and sought only statutory damages under § 1640(a)(2). Id. at 990-91. The Seventh Circuit said that § 1640(a) statutory damages are available in connection with disclosures under § 1638 "only for failing to comply with the requirements of section 1635 of this title or of paragraph (2) (insofar as it requires a disclosure of the `amount financed'), (3), (4), (5), (6), or (9) of section 1638(a) of this title. . . ." Id. at 991 (emphasis in Brown). The court concluded that the word "only" "confines statutory damages to a closed list." Id. Because the violations alleged by the plaintiffs did not fall within that list, the Seventh Circuit held they were not entitled to statutory damages. Id. at 991-92. The court rejected the plaintiffs' attempts to use the "back door" theory that lack of compliance with §§ 1632(a), 1632(a)(8) and 1638(b)(1) is also a violation of § 1638(a)(3), § 1638(a)(4), and so on, for which statutory damages are available. Id. at 991. The court said: "Congress included some and excluded others; plaintiffs want us to turn this into universal inclusion, which would rewrite rather than interpret § 1640(a)." Id. Thus, Brown holds that statutory damages are available "only for violations of" the subsections specifically enumerated in § 1640(a). Id. at 991-92.
In seeking partial summary judgment, Tom Wood did not rely on the absence of actual damages and unavailability of statutory damages. Its Statement of Undisputed Relevant Facts, however, does assert that Ms. Spearman did not intend to shop around for more favorable credit terms. So, Plaintiff is not totally unaware of this issue. And, Ms. Spearman's counsel is an experienced attorney with numerous cases in this court brought under TILA. In one such case, Collins v. Ray Skillman Olds-GMC Truck, Inc., IP00-1281-C-T/K, in which the plaintiffs claim a similar violation of TILA and Regulation Z and in which oral arguments were heard immediately following those in this case, the damages issue has been raised and argued on summary judgment. The court only raises this matter as an alternative basis for the grant of partial summary judgment in favor of Tom Wood. Given Ms. Spearman's deposition testimony, were Tom Wood to argue that the lack of actual damages and unavailability of statutory damages entitles it to partial summary judgment, the result would be a foregone conclusion.
The Complaint makes reference to 15 U.S.C. § 1632(a) which requires that the disclosures be made "clearly and conspicuously". However, it is clear that Ms. Spearman's claim is not based on an alleged failure to make the disclosures "clearly and conspicuously", but rather, on an alleged failure to make the disclosures before the consummation of the transaction in writing in a form that she could keep. (See Compl. ¶ 47 ("Plaintiff and the class members were not furnished with the TILA disclosures before or during the consummation of the transaction."); Case Management Plan ¶ III.A at 5-6 ("Plaintiff and the class members were not furnished with the TILA disclosures before or during the consummation of the transaction. Therefore, Tom Wood has violated TILA and Regulation Z.")). Also, nothing in Ms. Spearman's summary judgment papers, including her factual assertions, pertains to § 1632(a)'s requirements. (See, e.g., Pl.'s Resp. Opp'n Tom Wood's Mot. Summ. J. Mem. Support. Cross-Mot. Partial Summ. J. at 21 ("Because Tom Wood admittedly did not give Spearman the TILA disclosures in writing, in a form that she could keep, until after she signed the Contract, Tom Wood violated the TILA.") (emphasis in brief)). Moreover, during oral argument Ms. Spearman's counsel stated that Plaintiff does not dispute the adequacy of the disclosures in terms of content and form as they appeared in the Contract.
At least three other district courts have held that actual damages are the only available remedy for a violation of TILA's timing and form of disclosure requirements. Tripp v. Charlie Falk Auto, No. CIV. 3:00CV512, 2001 WL 1105132, at *6 (E.D.Va. Aug. 22, 2001) (granting summary judgment on plaintiff's claim that car dealer violated TILA's time of disclosures requirement); Crowe v. Joliet Dodge Union Acceptance Corp., No. 00 C 8131, 2001 WL 811655, at *4 (N.D.Ill. July 18, 2001) (dismissing plaintiff's claim for statutory damages for defendant's alleged failure to give disclosures in a form plaintiff could keep prior to consummation of the transaction in violation of § 1638(b)(1)); Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp.2d 535, 549 (E.D. Va. 2001) ("Notwithstanding the timeliness of Koons' disclosures to Nigh, Koons is also entitled to summary judgment on the timing issue because Nigh cannot demonstrate actual damages. The only remedy for failing to timely make disclosures is actual damages."). These district court decisions are consonant with the Seventh Circuit's holding in Brown.
The court concludes that statutory damages are available "only for violations of" the subsections specifically enumerated in § 1640(a). Since subsection (b)(1) of § 1638 is not specifically enumerated in § 1640(a), the court holds that statutory damages are unavailable for violations of that subsection. Ms. Spearman alleges a violation of § 1638(b)(1) and is therefore not entitled to statutory damages. As it is apparent she sustained no actual damages as a result of the alleged violation, she could not prevail on her claim even if she could prove that Tom Wood violated TILA and Regulation Z.
This conclusion holds true even if Ms. Spearman purports to bring a claim under § 1632(a) regarding the "clearly and conspicuously" disclosure requirement as § 1632(a) is not one of the subsections enumerated in § 1640(a)(2). See Brown, 202 F.3d at 991-92.
3. Dismissal of Claim under the Indiana Credit Services Organization Act
Having concluded that Tom Wood is entitled to summary judgment on the claim under TILA, the court in its discretion declines to exercise supplemental jurisdiction over the state law claim against this Defendant under the Indiana Credit Services Organization Act ("CSOA") asserted in Count III of the Complaint. 28 U.S.C. § 1367(c)(3) authorizes the dismissal of this claim since Tom Wood is entitled to summary judgment on the only federal claim against it. See Ryan v. Ill. Dep't of Children Family Servs., 185 F.3d 751, 764-65 (7th Cir. 1999) (upholding district court's dismissal under § 1367(c)(3) of a state law claim against various defendants where no federal claims survived summary judgment against those defendants though federal claims survived as against other defendants). Dismissal is particularly appropriate because the CSOA claim is not so related to the remaining federal claim against Defendant Charles R. Sheeks that the claims form part of the same case or controversy. Therefore, the claim against Tom Wood under the CSOA is DISMISSED WITHOUT PREJUDICE to refiling in the appropriate state forum within thirty (30) days of this date.
Conclusion
Upon reconsideration, the court finds that Tom Wood is entitled to summary judgment on Ms. Spearman's claim under TILA and Regulation Z. Therefore, the court VACATES that portion of its Entry On Summary Judgment And Related Motions which concluded that Ms. Spearman was entitled to summary judgment on her claim under TILA and Regulation Z, see Entry On Summary Judgment And Related Motions, dated July 30, 2001, at 7-13. Tom Wood's motion for partial summary judgment will be GRANTED and Ms. Spearman's cross-motion for partial summary judgment will be DENIED.
Tom Wood's Motion To Amend Order On Summary Judgment is DENIED AS MOOT.
As Tom Wood is entitled to summary judgment on Ms. Spearman's claim under TILA and Regulation Z, Plaintiff's Motion For Class Certification As Against Defendant Tom Wood Pontiac-GMC, Inc., which seeks class certification with respect to that claim, is now DENIED. Since Ms. Spearman cannot prove that Tom Wood failed to make the TILA disclosures in a form that she could keep before consummation of the transaction, she cannot establish that she is a proper representative of the class for which certification is sought.
Further, the court in its discretion declines to exercise supplemental jurisdiction over the claim against Tom Wood under the CSOA in Count III of the Complaint and this claim is DISMISSED WITHOUT PREJUDICE to refiling in the appropriate state forum within thirty (30) days of this date.
Plaintiff's Motion For Leave To File Motion For Summary Judgment Against Charles R. Sheeks is GRANTED. Plaintiff is AFFORDED thirty days from this date within which to file such a motion.
The court defers ruling on the other pending motions.
However, the court determines that there is no just reason for delay and pursuant to Fed.R.Civ.P. 54(b) directs the entry of final judgment in favor of Tom Wood and against Ms. Spearman.
ALL OF WHICH IS ORDERED this 3rd day of December 2001.