Parker v. DeKalb Chrysler Plymouth, Civ. A. No. C-77-980A.

• Decision Date: 28 September 1978
• Docket Number: Civ. A. No. C-77-980A.
• Citation: 459 F. Supp. 184
• Parties: Marlene PARKER, Plaintiff, v. DeKALB CHRYSLER PLYMOUTH and Fidelity National Bank, Defendants.
• Court: U.S. District Court — Northern District of Georgia

459 F. Supp. 184

Marlene PARKER, Plaintiff, v. DeKALB CHRYSLER PLYMOUTH and Fidelity National Bank, Defendants.

Civ. A. No. C-77-980A.

United States District Court, N. D. Georgia, Atlanta Division.

September 28, 1978.

Bensonetta Tipton, Ralph Goldberg, Atlanta, Ga., for plaintiff.

James R. Beach, Jr., Levine, D'Alessio & Cohn, Atlanta, Ga., for DeKalb Chrysler Plymouth.

R. Phillip Shinall, III, Weekes, Candler, Sams & Weatherly, Decatur, Ga., for Fidelity National Bank.

ORDER

MURPHY, District Judge.

On April 27, 1977, plaintiff Marlene Parker purchased a new Cordoba Chrysler automobile from defendant DeKalb Chrysler Plymouth ("DeKalb") and financed a portion of the purchase price. The paper was "assigned" to defendant Fidelity National Bank ("Fidelity"). On May 2, 1977, Ms. Parker signed a general release for $500.00, discharging DeKalb Chrysler Plymouth from any claims arising out of the purchase of the automobile.¹ Several weeks later Ms. Parker filed this action against DeKalb and Fidelity alleging that defendants, in the course of this transaction, violated both the Consumer Credit Protection Act. 15 U.S.C. § 1601 et seq. ("Truth-in-lending Act"), and Subchapter IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq. ("Odometer Act"). Jurisdiction is invoked under 15 U.S.C. §§ 1640(e) and 1989(b). Presently before the Court are defendants DeKalb's and Fidelity's motions for summary judgment and plaintiff Parker's motion for summary judgment against defendant Fidelity. The Federal Rules of Civil Procedure provide for the disposition of all or part of an action by summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R.CIV.P. 56(c).

I

The initial issue raised by these motions is what effect, if any, plaintiff's release has on her causes of action. Defendant DeKalb contends that the release bars any actions by the plaintiff based on the transaction and defendant Fidelity seeks to be included within the protection of the release.² The plaintiff on the other hand, argues on the basis of an earlier decision by this Court that her release does not bar her action under the Truth-in-Lending Act and should not bar her action under the Odometer Act. Plaintiff's argument is well taken.

In Buford v. American Finance Co., 333 F.Supp. 1243 (N.D.Ga.1971), the Court held that releases were null and void with respect to claims under the Truth-in-Lending Act. The Court noted as factors in its decision the clear contemplation of substantial enforcement through individual consumers acting as "private attorneys-general" citation omitted, the limitations on criminal prosecution, and the legislative intent to deter violations manifest in the design of a civil remedy guaranteeing a minimum recovery plus costs and reasonable attorney's fees without having to prove damages. The Court noted further the decision in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945), in which the United States Supreme Court held:

Where a private right is granted in the public interest to effectuate a legislative policy, waiver of a right so charged with the public interest will not be allowed where it would thwart the legislative policy which it was designed to effectuate.

Id. at 704, 65 S.Ct. at 901.

Defendant DeKalb would distinguish the instant action from Buford on the following facts: in Buford the releases were obtained after commencement of the action; in the instant case, plaintiff executed the release before filing suit. However this distinction argues against the defendants rather than for them. If plaintiff's release in Buford is void (where plaintiff knew what she was releasing) then there is even more force to the argument that plaintiff's release in the instant case should be void (where plaintiff may not have known what she was releasing). To validate the release here would thwart the legislative policy of the Truth-in-Lending Act as much, if not more, than doing so in Buford would have.

Juxtaposition of the Truth-in-Lending Act and the Odometer Act reveals a similarity of purpose and design sufficient to support the extension of the Brooklyn Savings-Buford rule to actions arising under the Odometer Act. Although the Odometer Act does not rely exclusively on private actions by individual consumers for its enforcement,³ it clearly contemplates actions by private attorneys-general as a substantial enforcement tool. See Stier v. Park Pontiac, Inc., 391 F.Supp. 397 (D.C.W. Va.1975); Delay v. Hearn Ford, 373 F.Supp. 791 (D.C.S.C.1974). Criminal prosecutions are limited to knowing and willful violations, 15 U.S.C. § 1990c, which are difficult to prove. The civil remedy is designed to deter violations by guaranteeing a minimum recovery of $1500.00, plus costs and reasonable attorney's fees. 15 U.S.C. § 1989(a).

Therefore, the Court holds that the release obtained by defendant DeKalb is null and void with respect to Ms. Parker's claims under the Truth-in-Lending Act and the Odometer Act. It remains for the Court to determine whether any of the parties have made the requisite showing to support a motion for summary judgment.

II

Defendant Fidelity was the first party to move for summary judgment in this action. Their motion was supported by the affidavit of James B. Miller, President of Fidelity National Bank. In his affidavit, Mr. Miller states that "no employee or agent of Fidelity had any knowledge with respect to the odometer disclosures required by the Odometer Act", that "no employee or agent of Fidelity had an intent to defraud Ms. Parker in regard to the alleged violations of the odometer disclosure requirements," and that Fidelity has "never been a transferor or owner" of the car Ms. Parker bought. These averments deal solely with Ms. Parker's cause of action against Fidelity under the Odometer Act and were not controverted by Ms. Parker's response to Fidelity's summary judgment motion. Through Mr. Miller's affidavit, Fidelity has successfully shown with respect to the alleged Odometer Act violations that there is no genuine issue as to any material fact and that Fidelity is entitled to judgment as a matter of law. Furthermore, plaintiff concedes that Fidelity is not subject to liability under the Odometer Act. The Court, therefore, grants defendant Fidelity's motion for summary judgment with respect to plaintiff's allegations of Odometer Act violations.

Since Fidelity's supporting affidavit goes only to the alleged Odometer Act violations, Fidelity's summary judgment motion with respect to the alleged Truth-in-Lending Act violations rests only on the pleadings and exhibits. Therefore, it will be treated as though it were a motion for judgment on the pleadings.⁴ Where a defendant moves for judgment on the pleadings, the fact allegations of the complaint are to be taken as true, but those of the answer are taken as true only where and to the extent that they have not been denied or do not conflict with those of the complaint. Stanton v. Larsh, 239 F.2d 104 (5th Cir. 1956). However, since plaintiff was not required or permitted to reply to Fidelity's answer, the averments therein are deemed denied. Fed.R.Civ.P. 8(d). The Court is left to consider the factual allegations contained in the complaint as true. As plaintiff has at least alleged a cause of action under the Truth-in-Lending Act, the Court finds that defendant Fidelity is not entitled to judgment on the pleadings.

III

The plaintiff, Ms. Parker, has moved for summary judgment against defendant Fidelity. This motion is supported by Ms. Parker's affidavit relating her version of the...