Arthur Tripp, on behalf of themselves v. Charlie Falk’s Auto Wholesale Incorporated; Future Finance Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2134
ARTHUR TRIPP, on behalf of themselves and others similarly
situated; MELDREDTH TRIPP, on behalf of themselves and others
similarly situated,
Plaintiffs - Appellants,
and
CHRISTIE SHEPHERD; TIMOTHY SHEPHERD,
Plaintiffs,
v.
CHARLIE FALK’S AUTO WHOLESALE INCORPORATED; FUTURE FINANCE
CORPORATION,
Defendants - Appellees,
and
CHARLIE FALK, SR.; FRED HAILEY; KATHERINE FALK,
Defendants.
--------------------------
FINOVA CAPITAL CORPORATION,
Movant.

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2
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CA-00-512-3)
Argued: May 13, 2008 Decided: August 29, 2008
Before TRAXLER and GREGORY, Circuit Judges, and Alexander WILLIAMS,
Jr., United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished opinion. Judge Williams wrote the opinion,
in which Judge Gregory joined. Judge Traxler wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Thomas Dean Domonoske, LAW OFFICE OF DALE W. PITTMAN,
Harrisonburg, Virginia, for Appellants. Robert Dean Perrow,
WILLIAMS MULLEN, Richmond, Virginia, for Appellees. ON BRIEF: John
Cole Gayle, Jr., KANE, JEFFRIES, GAYLE, MCGRATH & COOPER, Richmond,
Virginia; Dale W. Pittman, Petersburg, Virginia; David Brian
Rubinstein, Fredericksburg, Virginia, for Appellants. J. P.
McGuire Boyd, Jr., WILLIAMS MULLEN, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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3
WILLIAMS, District Judge:
This appeal involves the interpretation of two federal
statutes: the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et
seq., and the Motor Vehicle Information and Cost Savings Act (the
“Federal Odometer Act” or “FOA”), 49 U.S.C. § 32701, et seq.
Appellants Arthur and Linda Tripp (the “Tripps”) appeal the
district court’s denial of their motion for summary judgment and
the granting of Charlie Falk Auto Wholesale, Inc.’s (“CFAW”) motion
for summary judgment on both of the Tripps’ claims arising under
TILA and the Federal Odometer Act. Because the Tripps have failed
to show that there are genuine issues of material fact that CFAW
violated either TILA or the Federal Odometer Act, we affirm the
district court’s ruling.
I.
On August 7, 1999, the Tripps entered into a deal at CFAW for
the purchase of a 1994 Ford Taurus (the “vehicle”), which they
intended to finance. After the Tripps had selected the vehicle and
negotiated the basic terms of the deal, a CFAW employee placed
several documents (the “transaction documents”) before them to read
and sign. The primary transaction documents were as follows: the
Buyer’s Order; the Motor Vehicle Installment Sale Contract, which
included the Truth-in-Lending Disclosures, the Promissory Note, and
the Security Agreement (the “credit contract”); the Re-Assignment

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4
of Title by Virginia Motor Vehicle Dealer Form (the “Re-Assignment
Form”); a document entitled “Important Notice;” and the Application
for Certificate of Title and Registration.
The Buyer’s Order itemized the sale price of the vehicle and
other amounts to be paid. It also contained an odometer disclosure
statement, showing that the vehicle had a total mileage of 67,154
miles. This document included a provision entitled “Seller’s Right
to Cancel,” which essentially provided that if the financing deal
had not been accepted by the financing company -- Future Finance
Company, Inc. (“Future Finance”) -- the Seller could void the
contract. This clause provided for the return of the vehicle and
allowed the Buyer to receive his down payment, less any mileage
charges or physical damage or other expenses incurred in recovering
the vehicle.
The Credit Contract is the document setting forth the terms
and conditions of the financing deal in addition to the required
TILA disclosures. This document also contained a provision
regarding the contingency of the contract on the approval of the
financing agreement by Future Finance. The Credit Contract, like
the Buyer’s Order, included a section entitled “Itemization of
Amounts Owed,” which reflected the inclusion of a $395.00
processing fee in the total amount financed.
The Important Notice document contains an exact reprint of a
provision from the sales contract, notifying the buyer and co-buyer

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1In addition to these documents, CFAW issued a temporary
certificate for the vehicle and gave temporary license tags to the
Tripps.
5
that the vehicle must be returned to the dealer if the financing
agreement is not approved. The document also included a provision
at the top of the page that the buyer is to read the notice
carefully and sign below, “acknowledging complete understanding” of
the contract and its terms.
The Re-Assignment Form is a document that transferred title to
the vehicle from CFAW to the Tripps and also identified Future
Finance as the lienholder on the vehicle. Additionally, this
document contained the odometer disclosure statement, which also
showed a mileage reading of 67,154 on the date of purchase, August
7, 1999.
Finally, the Application for Certificate of Title and
Registration disclosed the owner’s information, the lienholder’s
information, as well as the mileage disclosure and the date of
purchase.1
A CFAW employee presented and explained these documents to
the Tripps, and afterwards, the Tripps signed each document,
thereby completing the transaction and contractually binding
themselves. The deal required the Tripps to make a $1,000 down
payment, $500 of which was initially paid the Tripps, with the
remaining balance being paid in two installments within the next

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2The case was initially filed as a class action against CFAW,
Future Finance – its related financial institution – and CFAW’s
chief individual officers for violations of both federal and state
law. However, the individual defendants, as well as the other set
of Plaintiffs, were dismissed from the case.
6
two weeks. That same day, the Tripps left the dealership with the
vehicle.
On August 24, 1999, CFAW informed the Tripps that Future
Finance had not approved the deal. CFAW then gave the Tripps the
option to restructure a new deal, which would require an additional
$500 down payment, or they could return the vehicle. The Tripps
did not agree to either of these options, and CFAW subsequently
took possession of the vehicle. Thereafter, on August 25, 1999,
Mr. Tripp went to CFAW and requested the return of his down
payment. He was told that he could receive a refund that day only
if he went to the Norfolk dealership. Thereafter, the Tripps went
to Norfolk, Virginia, to receive their refund. They were asked
again by a CFAW employee to renegotiate the deal but refused.
Before the Tripps could receive their refund, they were required to
sign a Release Form, which purported to release CFAW from any
liability and prevent the Tripps from bringing any suit or claim
against CFAW regarding the purchase of the vehicle. After
deducting the contractual mileage charge, the Tripps received a
check in the amount of $656.80 and cashed it that day.
On August 8, 2000, the Tripps initiated this lawsuit by filing
their complaint in the Eastern District of Virginia.2 Both parties

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3 There has been quite a delay in the completion of this
appeal. The Tripps filed their Notice of Appeal on September 19,
2001. However, on February 7, 2002, after the Tripps filed their
opening brief but before CFAW (and Future Finance) filed their
response brief, the case was suspended pending the resolution of a
Chapter 11 bankruptcy petition filed by Future Finance. See In re
Future Finance Company, Inc., Case No. 02-DHA-70457 in the United
States Bankruptcy Court for the Eastern District of Virginia,
Norfolk Division. Since that cased has been resolved, the briefing
scheduled was resumed by Order of the Court, dated November 14,
2007.
7
filed motions for summary judgment: the Tripps moved for summary
judgment on the TILA and the Virginia Consumer Protection Act
claims, and CFAW moved for summary judgment on the TILA and the
Federal Odometer Act claims. After hearing oral argument, the
district court found that the Release signed by the Tripps was
unenforceable and not supported by adequate consideration, and thus
not a valid contract. The district court then ruled on the federal
law claims, denying the Tripps’ motion for summary judgment and
granting CFAW’s motion for summary judgment. The district court
also declined to exercise supplemental jurisdiction over the state
law claims and accordingly dismissed those claims. 3
II.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). In reviewing a grant of summary judgment, we apply the same

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8
standards as the district court, and our scope of review is de
novo. Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408,
418 (4th Cir. 2004). On summary judgment, any permissible
inferences to be drawn from the underlying facts must be viewed in
the light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587-88, (1986). The Tripps appeal the district court’s ruling
granting summary judgment to CFAW on the TILA and the Federal
Odometer Act claims as well as its decision to decline jurisdiction
over the state law claims. We shall address each claim
individually.
III.
Under TILA, the Tripps contend that the district court erred
in granting summary judgment to CFAW because material issues of
fact remain as to whether CFAW complied with TILA by providing the
required credit disclosures to the Tripps in the proper form and at
the proper time, as mandated by the Act and its regulations.
First, they argue that CFAW failed to comply with the form and
timing provision of the Act’s disclosure requirements by waiting
until after the contract was signed to give the Tripps a copy of
the document. Second, they argue that CFAW failed to label the
processing fee as a “finance charge” that was optional for cash
purchasers. Third, the Tripps argue that CFAW failed to make known

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4“Consummation” means the time that a consumer becomes
contractually obligated on a credit transaction. 12 C.F.R. §
226.2(a)(13).
9
that the TILA disclosures were estimates. Finally, as a result of
these violations, the Tripps contend that they are entitled to
statutory damages.
A.
TILA was passed by Congress in order to “assure a meaningful
disclosure of credit terms so that the consumer will be able to
compare more readily the various credit terms available to him and
avoid the uninformed use of credit . . . .” 15 U.S.C. § 1601(a);
see also Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 363
and n.20 (1973). TILA mandates that creditors make specific
disclosures before extending credit to consumers. 15 U.S.C. §
1638(a), (b). The Federal Reserve Board (“FRB”), the agency
charged with administering the statute, has adopted Regulation Z to
implement the Act’s mandates and methods of disclosure. See 12
C.F.R. Part 226 (2001).
TILA requires a lender to disclose to a borrower, among other
things, the amount financed, the finance charge, the annual
percentage rate, and the total sale price. 15 U.S.C. § 1638; 12
C.F.R. § 226.18. In closed-end transactions, like the one in this
case, the creditor must make the specified disclosures “clearly and
conspicuously in writing, in a form that the consumer may keep”
before “consummation 4 of the transaction,” i.e., before the credit

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5Regulation Z also provides the following illustration showing
a creditor’s compliance with the form and timing requirements of 12
C.F.R. § 226.17:
A creditor gives a consumer a multiple-copy form
containing a credit agreement and TILA disclosures. The
consumer reviews and signs the form and returns it to the
creditor, who separates the copies and gives one copy to
the consumer to keep. The creditor has satisfied the
disclosure requirement.
67 Fed. Reg. at 16983.
10
is extended. 12 C.F.R. § 226.17(a), (b); see also 15 U.S.C. §
1638(b). The Amended Commentary to the regulation states that
Creditors are not required to give the consumer two
separate copies of the document before consummation, one
for the consumer to keep and a second copy for the
consumer to execute. The disclosure requirement is
satisfied if the creditor gives a copy of the document
containing the unexecuted credit contract and disclosures
to the consumer to read and sign; and the consumer
receives a copy to keep at the time the consumer becomes
obligated. It is not sufficient for the creditor merely
to show the consumer the document containing the
disclosures before the consumer signs and becomes
obligated. The consumer must be free to take possession
of and review the document in its entirety before
signing.
67 Fed. Reg. 16983 (April 9, 2002) (emphasis added). 5
We have had the opportunity to address the plain meaning of
this regulation in Polk v. Crown Auto, Inc., 221 F.3d 691 (4th Cir.
2000) (Polk I). There, the issue before the court was “whether a
seller is required to make the required disclosures in writing and
in a form that the consumer can keep before consummation, or
whether Regulation Z is satisfied as long as the disclosures are

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11
made in some form [i.e., orally] before consummation and the
consumer later receives the disclosures in writing, in a form that
he can keep.” Polk I, 221 F.3d at 692. We held there that the
plain meaning of the statute was clear, in that written disclosures
must be provided to the consumer in a form that he could keep
before consummation of the transaction. Id.
Turning to the facts in this case, the Tripps contend that
CFAW violated TILA because they did not provide the Tripps with the
document containing the TILA disclosures in a form they could keep
prior to consummation, i.e., they were not given physical
possession of the document as opposed to simply viewing it.
However, contrary to the Tripps’ interpretation, nothing in the
statute or the case law requires actual, physical possession of the
documents to satisfy the Act’s provisions. As long as disclosures
are made in writing before the transaction is complete, the
requirements under the statute and the regulations are met.
Here, the record shows that a CFAW employee provided the
transaction documents and credit disclosures to the Tripps before
signing, i.e., before the transaction was consummated, and the
Tripps had the opportunity to read the documents before signing.
This manner of presenting the documents satisfied the form and
timing requirements. Polk I, 221 F.3d at 692; see Regulation Z, 67
Fed. Reg. at 16983 (“The disclosure requirement is satisfied if the
creditor gives a copy of the document containing the unexecuted

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12
credit contract and disclosures to the consumer to read and sign;
and the consumer receives a copy to keep at the time the consumer
becomes obligated.”).
TILA does not compel the consumer to take the document,
although they are not prevented from doing so. Nor does TILA
compel the consumer to read it, although it is perhaps a prudent
thing to do. The Tripps admitted several times that they did not
read the contract or all of the documents placed before them. The
Tripps also acknowledged during their deposition testimony that
CAFW gave them the transaction documents and explained “most of the
important numbers.” (J.A. 276). Furthermore, the Tripps stated
that the CFAW employee asked them to sign the document “if all of
that [the terms] was agreeable to [them].” (J.A. 276). Their
signature is evidence that the disclosed credit terms were
“agreeable” to them.
Additionally, one of the stated purposes of TILA is to allow
consumers to use these disclosures and “compare more readily the
various credit terms,” presumably with other creditors. The Tripps
admitted in their depositions that they were not going to “shop
around” to other dealerships because they were told that they were
approved for a car, and there was no reason to continue searching.
(J.A. 259-60). While that fact does not relieve CFAW of its
obligations to comply with the statute, it diminishes the
likelihood of a violation, and it certainly minimizes any potential

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13
harm or damage, if any, to the Tripps by CFAW’s actions.
Nevertheless, the record shows that CFAW did provide the Tripps the
disclosures in writing in a form they could keep prior to
consummation. Thus, we find that there were no violations of the
form and timing requirements as provided under TILA.
B.
The Tripps next contend that CFAW violated TILA by failing to
label the $395 processing fee as a “finance charge” that was
optional for cash purchasers. As stated above, the “finance
charge” is one of the items that must be disclosed to consumers. 15
U.S.C. § 1638(a)(3); see also 12 C.F.R. § 226.18 (requiring
disclosure and itemization of, inter alia, the finance charge and
the amount financed). Under TILA, a “finance charge” is any charge
“imposed directly or indirectly by the creditor as an incident to
the extension of credit,” but it “does not include charges of a
type payable in a comparable cash transaction.” 15 U.S.C. §
1605(a); see also 12 C.F.R. § 226.4(a). The reason is that such
charges cannot be considered as having been imposed “as an incident
to the extension of credit.” To prevail under this provision of
TILA, a plaintiff must provide evidence that a fee was incident to
the extension of credit and not charged in comparable cash
transactions. See Polk v. Crown Auto, Inc., 228 F.3d 541, 542 (4th
Cir. 2000) (Polk II); see also Alston v. Crown Auto, Inc., 224 F.3d
332, 334 (4th Cir. 2000).

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6CFAW produced eighteen Buyer’s Purchase Orders showing that
between July 1999 and September 1999 – the relevant time period for
the Tripps’ transaction – the $395.00 processing had been charged
in cash sale transactions. (J.A. 414-431).
14
The Tripps argue that they presented evidence that an issue of
fact was raised about whether CFAW charged them a mandatory
processing fee that was optional for cash purchasers. They point
to the deposition testimony of Mr. Timothy Doe, who testified on
behalf of CFAW for a previous case in 1999 where CFAW was involved.
Mr. Doe testified during a deposition in that case that the
processing fee would not have been charged to a customer who
purchased a vehicle with cash. (J.A. 178-79, 664-65). Mr. Doe
later corrected himself, after having taken a break and reviewed
the relevant documents, and came back on the record to explain that
he had been mistaken on one of his previous answers and that the
$395 processing was charged on all transactions – both cash and
credit. (J.A. 666-67).
In this case, Mr. Doe testified that regardless of whether the
transaction is one for cash or credit, the $395 processing fee is
charged to all customers for the necessary title work. (J.A. 629-
633). In addition, documents produced by CFAW show that in 1999,
when the Tripps purchased their vehicle, CFAW’s general practice
was to charge the fee to both cash and credit customers. 6
Moreover, these documents – the Buyer’s Purchase Orders – clearly
indicate that the seller’s processing fee is “applicable to Cash or

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Credit Sales.” (J.A. 414-31). Because the Tripps have not
produced evidence to refute CFAW’s general practice of charging the
$395 processing for both cash and credit transactions, we find that
the $395 processing fee was not a “finance charge” under TILA, and
CFAW was not required to disclose it as a “finance charge.” Polk
II, 228 F.3d at 542 (4th Cir. 2000) (finding that $85 processing
fee was not a “finance charge” under TILA and that dealer was not
required to disclose it as such); Alston, 224 F.3d at 334 (same).
C.
The Tripps next argue that CFAW violated TILA by failing to
make known that the disclosures were estimates. They underscore
their argument by contending that the district court erred in
failing to determine whether the contract was one with a condition
precedent or a condition subsequent so as to establish the
effective date of the contract and thus determine whether the
disclosures were accurate at that time.
TILA requires that the credit disclosures “reflect the terms
of the legal obligation of the parties.” 12 C.F.R. § 226.17(c)(1).
Disclosures must be labeled as estimates when “any information
necessary for an accurate disclosure is unknown to the creditor.”
12 C.F.R. § 226.17(c)(2)(I). Moreover, even If the information
disclosed under TILA is “subsequently rendered inaccurate as the
result of any act, occurrence, or agreement subsequent to the

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delivery of the required disclosures, the inaccuracy resulting
therefrom does not constitute a violation.” 15 U.S.C. § 1634.
For purposes of TILA, the crux of the inquiry begins and ends
at the moment when the transaction is consummated. As we have held
previously, when the consumer has signed the buyer’s order and the
retail installment sales contract, the transaction is
“consummated.” Nigh v. Koons Buick Pontiac GMC, Inc., 319 F.3d 119,
124 (4th Cir. 2003), rev’d on other grounds, 543 U.S. 50, 125 S.Ct.
460 (2004). Relying on Nigh, we concluded in Gibson v. LTD, Inc.,
that “when the purchaser of a motor vehicle signs a retail
installment sales contract after which he no longer can alter the
terms of credit and after which the dealer retains the exclusive
right to decide when the financing arrangement takes effect, the
transaction is ‘consummated’ for TILA purposes.” 434 F.3d 275, 281
(4th Cir. 2006); Nigh, 319 F.3d at 124; see also Bragg v. Bill
Heard Chevrolet, Inc., 374 F.3d 1060, 1066 (11th Cir. 2004)
(adopting Nigh as being consistent with Regulation Z and the
consumer’s obligations for unfunded financing agreements).
Here, when the Tripps signed the contract documents on August
7, 1999, the transaction was consummated, thereby contractually
obligating the Tripps to the terms of the deal. If the credit
contract had been approved at a later time, the effective date of
the contract would relate back to the date of consummation – August
7, 1999. The credit contract stated, in addition to the Important

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Notice, that the contract was “contingent on Future Finance
Company, Inc. or other assignee approving and purchasing the
contract from seller.” (J.A. 357). It goes on to explain that “in
the event the contract is not purchased from seller for whatever
reason, the contract shall be voidable at the sole option of the
seller.” Id. If the financing company had approved and agreed to
purchase the credit contract, then the Tripps would have been
legally obligated to purchase the vehicle at the terms disclosed on
the credit contract; those terms could not be altered by the
Tripps. If the financing company had not approved the contract,
then the contract was voidable, since there would (most likely) be
no contract. As such, the terms disclosed under the credit
contract need not have been disclosed by CFAW as estimates – those
were the amounts disclosed to the Tripps that they were obligated
to under the contract.
The Seventh Circuit case of Janikowsky v. Lynch Ford, Inc.,
210 F.3d 765 (7th Cir. 2000), is also instructive on this point.
There, the court affirmed the entry of summary judgment to the
dealer where the plaintiff entered into a new contract to buy a
vehicle at an 11.9% interest rate, when the dealer could not obtain
financing at the initial contract rate of 5.9%. Id. at 767. The
court rejected Plaintiff’s argument that the 5.9% interest rate was
an estimate, stating that it was not an estimate but rather, the
contractual rate, and thus, an “accurate disclosure for that

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18
contract” since it “could not and did not vary under its terms.”
Id. at 768. The court went on to explain that had the financing
condition been satisfied, the plaintiff would have been obligated
to purchase the vehicle at the 5.9% interest rate. Id. The
plaintiff could have canceled the contract and refused to purchase
the vehicle, but “[e]ither way, the disclosed rate was a set rate,
not an estimate.” Id.
Moreover, contrary to the Tripps argument, the determination
of whether the contract was one with a condition precedent or a
condition subsequent is unnecessary. Consummation has still
occurred with the signing of the unfunded credit contract by the
Tripps. The sales contract states that the sale is “not contingent
upon financing on terms that are satisfactory to Buyer, yet [is]
contingent upon acceptance of this contract by Future Finance
Company or other Assignee.” (J.A. 355). As we have stated before,
as long as the dealer, and not the consumer, had control over
satisfaction of the terms, we need not reach the issue of
condition-precedent or condition-subsequent. See Gibson, 434 F.3d
at 282.
D.
Next, the Tripps contend that they are entitled to statutory
damages for CFAW’s violations under TILA’s form and timing
requirements and that fact issues remain as to whether CFAW
provided the Tripps with the substantive disclosures in a form they

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19
could keep before consummation. We disagree. Since we have found
that there were no violations of the form and timing requirements
or of the manner in which the disclosures were given to the Tripps,
we find that the Tripps are not entitled to any damages under TILA.
As a result, the district court properly granted summary judgment
to CFAW on the TILA claims.
IV.
Under the Federal Odometer Act (“FOA”), the Tripps argue that
the district court erred in granting summary judgment to CFAW
because material issues of fact remained regarding whether CFAW
violated the Act, particularly regarding whether the “intent to
defraud” element was present.
FOA requires that persons transferring ownership of a motor
vehicle must disclose to the transferee, in writing, the
“cumulative mileage registered on the odometer.” 49 U.S.C. §
32705(a)(1)(A). The purpose behind the act was to “prohibit
tampering with motor vehicle odometers” and “to provide safeguards
to protect purchasers in the sale of motor vehicles with altered or
reset odometers.” 49 U.S.C. § 32701(b). However, it is important
to note that FOA’s disclosure provisions are not implicated until
ownership of the vehicle is transferred. 49 U.S.C. § 32705(a)(1);
see also 49 C.F.R. § 580.5©. FOA defines “transfer” to mean “to

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7In Ryan v. Edwards, we interpreted 15 U.S.C. § 1988, the
predecessor to the current Federal Odometer Act, which also
required “[d]isclosure of the cumulative mileage registered on the
odometer” and prohibited false statements in the disclosure. 595
F.2d 756 (4th Cir. 1979).
20
change ownership by sale, gift, or any other means.” 49 U.S.C. §
32702(8).
FOA prohibits the transferor from making false statements to
the transferee surrounding the required mileage disclosures. 49
U.S.C. § 32705(a)(2). We have interpreted this prohibition to mean
that FOA is violated when the mileage specified on the disclosure
statement fails to correspond with the vehicle’s actual number of
miles traveled, even if the stated mileage does correspond to the
odometer reading at the time of sale. Ryan v. Edwards, 592 F.2d
756, 760 (4th Cir. 1979). 7 Civil liability arises under FOA only
if a person violating the Act did so with “intent to defraud.” 49
U.S.C. § 32710; Ryan, 592 F.2d at 761.
At the outset, we note that Virginia is considered a “strict
title” state, which means that transfer of ownership of a motor
vehicle requires the assignment of title. Allstate Ins. Co. v.
Atlanta Cas. Co., 260 Va. 148, 155, 530 S.E.2d 161, 165 (2000);
Rawl’s Auto Auction v. Dick Herman Ford, Inc., 690 F.2d 422, 426-27
(4th Cir. 1982) (citing Thomas v. Mullins, 153 Va. 383, 149 S.E.
494 (1929)). FOA allows title to be transferred on a Reassignment
of Title Form as long as the mileage and other required disclosures
are provided on that document. 49 C.F.R. § 580.5(b),©.

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21
Before proceeding to the substance of FOA, we must first
determine whether the FOA’s requirements are triggered – whether
title (i.e., ownership) was transferred to the Tripps. Reviewing
the facts of this case, we find that ownership of the vehicle did
not transfer to the Tripps, and, thus, did not trigger the
requirements of FOA. First, the Tripps admit that title to the
vehicle was never transferred to them. In their complaint, they
state that CFAW never “signed title of the car over to the Tripps.”
(J.A. 19, 24). Additionally, in Virginia, ownership is transferred
whenever title has been assigned to the transferee. Allstate Ins.
Co., 260 Va. at 155, 530 S.E. 2d at 165. Here, since the credit
contract was not approved by Future Finance and the contract was
voided by CFAW, title was never assigned to the Tripps. The Tripps
merely had possession of the vehicle between the time they signed
the credit contract and the time the vehicle was returned to CFAW.
As it remains, there is no viable claim under FOA.
To the extent that title somehow did transfer to the Tripps,
we find that the disclosure requirements of FOA had been satisfied.
CFAW, in accordance with the regulations, was entitled to use a
valid Re-Assignment of Title document (that would have eventually
transferred title to the Tripps) since title to the vehicle was not
in CFAW’s name. 49 C.F.R. § 580.5©. Title was actually in the name

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8Virginia law allows a dealer to obtain a reassignment of
title from a transferor, and since the dealer, like CFAW, merely
holds a vehicle for resale, it is not required to register the
title with the Virginia department of motor vehicles. See Va. Code
Ann. § 46.2-631 (West 2008).
22
of Crestar, with a reassignment to CFAW. (J.A. 47, 787). 8 As shown
from the Crestar title, CFAW obtained a written assignment of title
on July 24, 1999, from Crestar, and no new title was issued in
CFAW’s name. On August 7, 1999, when the Tripps signed the credit
contract and were given possession of the vehicle, title of the
vehicle remained in Crestar’s name.
On July 24, 1999, Crestar disclosed the mileage of the vehicle
as 67,149 miles, when it assigned the vehicle’s title to CFAW.
(J.A. 47, 787). Two weeks later, on August 7, 1999, CFAW disclosed
the mileage to the Tripps on the Re-Assignment form as 67,154 miles
(J.A. 778, 358). This reading was taken after a short test drive
by the Tripps. (J.A. 728, 393). On the Re-Assignment of Title
form, CFAW properly disclosed the mileage at the time the form was
executed. In addition to the odometer reading at the time of
transfer, the form also had the other disclosures as required under
the regulation: the date of transfer, the transferor’s name and
current address; the transferee’s name and current address; and the
identity of the vehicle, including the make, model, year, and body
type; and its vehicle identification number. See 49 C.F.R. 580.5©.
Moreover, no evidence has been produced by the Tripps to refute
these odometer readings as inaccurate.

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23
Finding that there were no violations of FOA, we need not
reach the issue of CFAW’s alleged “intent to defraud.”
Furthermore, the law was envisioned to protect consumers from
unscrupulous dealers who were intentionally trying to conceal a
vehicle’s mileage and take advantage of unsuspecting buyers who
were relying upon those disclosures in assessing the safety and
reliability of a vehicle. The facts and circumstances of this case
do not present that situation. Here, CFAW properly recorded the
mileage of the vehicle from the title to the re-assignment form,
and the various documents and testimony do not present any material
issues of fact as being in dispute with regard to the mileage
disclosure. As such, the district court properly granted summary
judgment to CFAW under FOA.
V.
Finally, the Tripps argue that the district court erred in
dismissing their remaining state law claims. The district court,
having disposed of the Tripps’ federal claims under TILA and FOA,
declined to exercise its supplemental jurisdiction over the state
law claims. 28 U.S.C. § 1367©. A district court has the inherent
power to dismiss a case having only state law claims provided that
the conditions for declining supplemental jurisdiction under 15
U.S.C. § 1367© have been met. Hinson v. Norwest Fin. S. C., Inc.,
239 F.3d 611, 617 (4th Cir. 2001). Here, the district court

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9There is also no basis for original jurisdiction under
diversity jurisdiction, 28 U.S.C. § 1332, as both parties are
citizens of Virginia.
24
declined to hear the remaining state law claims since the federal
claims over which it had original jurisdiction had been dropped
from the case through summary judgment. See 28 U.S.C. § 1367(c)(3).
These remaining claims could not provide a basis for original
jurisdiction under federal question, 28 U.S.C. § 1331. 9 As stated
earlier, exercising supplemental jurisdiction is within the
discretion of the district court and since the district court here
properly granted summary judgment to CFAW on the federal law
claims, we find that there was no abuse of discretion in dismissing
the state law claims. See Shanaghan v. Cahill, 58 F.3d 106, 110
(4th Cir. 1995)(acknowledging that district courts “enjoy wide
latitude in determining whether or not to retain jurisdiction over
state claims when all federal claims have been extinguished.”).
VI.
Based on the foregoing discussion, the judgment of the
district court is therefore
AFFIRMED.

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25
TRAXLER, Circuit Judge, concurring in part and dissenting in part:
I concur in parts I, II, III(C), and IV of the majority
opinion, and I agree with the result reached in part III(A). I
write separately to explain my differing analysis with regard to
the issues addressed in parts III(A), III(B), and V of the majority
opinion.
I.
The Tripps rely on three different legal theories in claiming
that the district court erred in granting summary judgment against
them on their Truth in Lending Act ("TILA") cause of action, see 15
U.S.C.A. § 1601, et seq. I agree with the majority that the
Tripps' claim CFAW did not make known the TILA disclosures were
estimates failed as a matter of law. I will address the Tripps'
other TILA theories seriatim.
A.
The Tripps first argue that the district court erred in
concluding they had not created a genuine factual issue concerning
whether CFAW violated TILA by waiting until after the credit
contract was signed to give them a copy of the document containing
the TILA disclosures. I agree.
In enacting TILA, Congress declared that "[i]t is the purpose
of this subchapter to assure a meaningful disclosure of credit
terms so that the consumer will be able to compare more readily the

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26
various credit terms available to him and avoid the uninformed use
of credit." 15 U.S.C.A. § 1601(a) (West 1998). TILA specifically
authorizes the Federal Reserve Board ("FRB") to adopt regulations
to carry out TILA's purposes. See 15 U.S.C.A. § 1604(a) (West
1998).
The transaction at issue in this case was a closed-end credit
transaction governed by 15 U.S.C.A. § 1638 (West 1998 & Supp. 2008)
and "Regulation Z." See 12 C.F.R. pt. 226, subpt. C (2008). With
such transactions, the creditor is required to disclose, inter
alia, the amount financed, the finance charge, the annual
percentage rate, and the total sale price. See 15 U.S.C.A. §
1638(a); 12 C.F.R. § 226.18. These disclosures must be made before
the transaction is consummated. See 15 U.S.C.A. § 1638(b); 12
C.F.R. § 226.17(b). The disclosures also must be made "clearly and
conspicuously in writing, in a form that the consumer may keep."
12 C.F.R. § 226.17(a)(1). Official Staff Commentary to the
regulation clarifies the meaning of "form that the consumer may
keep":
The disclosure requirement is satisfied if the creditor
gives a copy of the document containing the unexecuted
credit contract and disclosures to the consumer to read
and sign; and the consumer receives a copy to keep at the
time the consumer becomes obligated. It is not
sufficient for the creditor merely to show the consumer
the document containing the disclosures before the
consumer signs and becomes obligated. The consumer must
be free to take possession of and review the document in
its entirety before signing.

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27
12 C.F.R. pt. 226, Official Staff Commentary 17(b)(3) (emphasis
added). This rule that simply showing the disclosures to the
consumer rather than allowing him to take possession of them
furthers TILA's purpose of allowing consumers "to compare more
readily the various credit terms available." 15 U.S.C.A. § 1601.
If merely allowing a consumer to view the disclosures were
sufficient and allowing the consumer to take possession of the
disclosures were not required, consumers seeking to shop different
creditors' terms would need to memorize all of the figures as they
proceeded from lender to lender.
Here, the Tripps stated in their affidavits and depositions
that CFAW merely showed them the relevant documents but never gave
them the documents until the documents were signed. According to
the Tripps, they did not know CFAW would allow them to take a copy
of its documents so that they could compare the terms offered to
those offered by another lender. I therefore would hold that the
Tripps created a genuine factual issue regarding whether CFAW's
disclosures satisfied TILA's requirements.
CFAW argues it forecast evidence that had the Tripps decided
to reject the terms disclosed on the credit contract, CFAW would
have allowed them to walk away from the deal with a copy of the
unsigned credit contract. In support of this claim, CFAW points to
the following excerpt from the affidavit of Tim Doe, CFAW's
business manager:

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28
If a CFAW customer decides to reject the credit
terms disclosed on the Credit Contract or on a separate
form, even after signing a Buyer's Order, he or she may
discontinue and cancel the entire transaction. In this
situation, CFAW has no policy against a customer leaving
the CFAW dealership with an unexecuted copy of the Credit
Contract, which contains the credit terms mandated by
[TILA] . . . .
J.A. 391. CFAW's argument notwithstanding, CFAW's internal policy
or secret intentions that were never communicated to the Tripps are
not sufficient to discharge CFAW's TILA obligations. Until CFAW
gave the document to the Tripps, or at least told them they could
have it, the Tripps were certainly not "free to take possession of"
CFAW's document. The FRB's Staff Commentary clearly provides that
merely showing the disclosures to the consumer is not sufficient,
and the Tripps forecast evidence that that was all CFAW did in this
case.
B.
Despite my belief that the Tripps created a genuine factual
issue regarding whether CFAW violated TILA by waiting until after
the credit contract was signed to give them a copy of the TILA
disclosures, in the end, I, like the majority, conclude that this
liability theory fails as a matter of law. The district court
concluded that, even if CFAW did not comply with Regulation Z's
form and timing requirements, the Tripps' liability theory failed
because (1) the Tripps failed to create a fact issue regarding
whether they were actually injured from this alleged violation

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29
since they had no intention of shopping for better credit terms
with other dealers, and (2) statutory damages were not available
for the violation of untimely providing the required § 1638
disclosures. The Tripps do not challenge the first conclusion, but
they do maintain that proof of a § 1638(b) violation would entitle
them to statutory damages, and thus that failure to prove damages
is not a basis on which summary judgment may be affirmed. However,
for the reasons explained in Baker v. Sunny Chevrolet, Inc., 349
F.3d 862, 865-69 (6th Cir. 2003), I agree with the district court
that statutory damages are not allowed for a defendant's untimely
presentation of the required TILA disclosures, see also Brown v.
Payday Check Advance, Inc., 202 F.3d 987, 990-92 (7th Cir. 2000)
(holding that statutory damages are available only for violations
of subsections specifically enumerated in § 1640(a)), and I would
affirm the grant of summary judgment regarding this theory on this
basis.
II.
The Tripps next argue that the district court erred in
determining they had not created a genuine issue of material fact
regarding whether the $395 processing fee was required to be
included in the "amount financed." I agree.
TILA defines "finance charge," as is relevant here, as "the
sum of all charges, payable directly or indirectly by the person to

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30
whom the credit is extended, and imposed directly or indirectly by
the creditor as an incident to the extension of credit." 15
U.S.C.A. § 1605(a) (West 1998). "The finance charge does not
include charges of a type payable in a comparable cash
transaction." Id. In order to ensure that the finance charge
disclosed to the consumer is the actual cost of obtaining credit,
TILA prohibits a creditor from including a finance charge as an
element of the "amount financed." See 12 C.F.R. § 226.18
(requiring disclosure and itemization of, inter alia, the finance
charge and the amount financed).
I believe that the Tripps created a genuine issue of material
fact regarding whether, at the time they purchased their vehicle,
CFAW was charging the $395 processing fee to every customer; and
for that reason, I believe they also created a genuine issue of
material fact regarding whether CFAW should have disclosed the $395
processing fee as part of the finance charge. Doe testified at a
deposition in another case in April 1999 that "the services [CFAW
provides in exchange] for the processing fee relate only to the
title documents," and that the fee is charged on every sale because
CFAW needs to ensure that the lien is properly recorded on the
title. J.A. 178. Doe explained that his endorsement of a check
received from another lender "guarantees lien and title delivered
to" that lender. J.A. 179. However, Doe also testified that if
the customer paid cash – as opposed to borrowing money from CFAW or

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31
another lender – Doe "would give [the customer] the title
documents," let them do the title work, and not charge them the
processing fee. J.A. 179. At that point in the deposition, CFAW's
lawyer requested a break and conferred with Doe. When the
deposition continued, Doe testified that he had come to realize,
after reviewing documents, that his prior testimony was a mistake
and that in fact the processing fee was charged in every case.
In a deposition in the present case taken in May 2001, Doe
reiterated that the $395 processing fee is charged regardless of
how the customer paid for his car. And, the summary judgment
record includes what CFAW contends is paperwork for the sales CFAW
made for the months surrounding the Tripp transaction, which CFAW
maintains shows that the processing fee was charged to every
customer, even when there was no lien to be recorded.
Nevertheless, I believe that a reasonable factfinder could credit
Doe's initial testimony that if the customer paid cash--as opposed
to borrowing money from CFAW or another lender--Doe would not
charge them the processing fee, and discredit Doe's contrary
testimony as being simply the result of CFAW's counsel's legal
advice. Cf. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389
(7th Cir. 2000) (explaining that when deponent changes his
deposition testimony, it is for the jury to decide which testimony
to believe); Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103
(2d Cir. 1997) (explaining that even when a deponent withdraws his

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32
previous deposition testimony, the withdrawn testimony remains part
of the record).
If CFAW did not charge the processing fee in sales with no
lien, then CFAW did not charge the fee in cash transactions that
were comparable to the Tripps' and the fee should have been
included as part of the finance charge. Although CFAW could still
maintain that it charged the fee in comparable transactions because
it charged the fee to customers who borrow from outside lenders and
pay with cashier's checks, those transactions are not comparable to
the Tripps', in my view. In Doe's April 1999 deposition, he
testified that CFAW charges the processing fee to buyers paying
with cashier's checks from outside lenders because CFAW's
endorsement of those checks acts as its guarantee that the lien
will be properly recorded. Because no such guarantee was involved
in the Tripps' transaction, it cannot be said as a matter of law
that these transactions were comparable to the Tripps'.
Relying on Alston v. Crown Auto, Inc., 224 F.3d 332 (4th Cir.
2000) (per curiam), CFAW argues the transactions that did not
involve a lien represented only a small minority of its sales, and
it need not charge the fee in every transaction for it to be
properly considered part of the amount financed rather than part of
the finance charge. See Alston, 224 F.3d at 334 (holding that
processing fee was not finance charge when general practice was to
charge the fee regardless of whether customer paid with cash or

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33
credit). But, Alston is distinguishable from the present case in
that the critical fact in Alston was that the seller's general
policy was to charge the fee to everyone; the two cash customers
who did not pay the fee had individually negotiated for that
arrangement. See id. If CFAW's policy was not to charge the fee
in no-lien sales, however, then the fee was not generally charged
in comparable cash transactions, and it should have been included
as part of the finance charge. I therefore would reverse the
district court's grant of summary judgment against the Tripps on
this claim.
III.
The district court, having granted summary judgment on all of
the Tripps' federal claims, declined to exercise supplemental
jurisdiction over their state claims. See 28 U.S.C.A. § 1367(c)(3)
(West 2006). Because I would reverse the grant of summary judgment
on the TILA claim, I would also reverse the district court's
refusal to exercise supplemental jurisdiction on the state law
claims. See Gruenke v. Seip, 225 F.3d 290, 308 (3d Cir. 2000).
IV.
In sum, I would reverse the district court's grant of summary
judgment on the TILA claim that the $395 processing fee was
required to be included in the "amount financed," vacate the

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34
district court's dismissal of the state law claims, and remand the
TILA and state law claims to the district court for further
proceedings. For the reasons expressed in Part I of my opinion and
Parts III(C) and IV of the majority opinion, I would otherwise
affirm the district court's order granting summary judgment against
the Tripps.

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