Malinee B. Virachack Ritnarone T. Virachack, and Rachelle Harvey v. University Ford, Dba: Bob Baker Ford

410 F.3d 579 Malinee B. VIRACHACK; Ritnarone T. Virachack, Plaintiffs-Appellants, and Rachelle Harvey, Plaintiff, v. UNIVERSITY FORD, dba: Bob Baker Ford, Defendant-Appellee. No. 03-55852. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 10, 2004. Filed May 20, 2005. Frank J. Fox, San Diego, CA, for the plaintiffs-appellants. Jan T. Chilton, Severson & Werson, San Francisco, CA, for the defendant-appellee. Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CV-02-00139-JTM/JFS. Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges. NOONAN, Circuit Judge: 1 Malinee B. Virachack and Ritnarone T. Virachack (the Virachacks) appeal the district court's grant of summary judgment to Ford, a California corporation business as Bob Baker Ford, in their action under the Truth In Lending Act (TILA), 15 U.S.C. § 1601 et seq. Holding that Bob Baker Ford did not fail to disclose the total finance charge, we affirm the judgement of the district court. FACTS 2 On November 18, 2001, the Virachacks bought a Ford Explorer from Bob Baker Ford. The purchase was partly on credit.…

dissenting.

The majority affirms the district court’s summary judgment dismissal of the Virachacks’ claim under the Truth in Lending Act (“TILA”), concluding their foregone rebate was not a finance charge. I respectfully dissent. A discount or rebate offered to purchasers paying with cash that is not extended to purchasers using credit is a finance charge. See F.R.B. *583 Regulation Z, 12 C.F.R. § 226.4 (b)(9) (“Regulation Z”).

The Appellants, Malinee B. Virachack and Ritnarone T. Virachack, purchased a Ford Explorer from the Appellee, University Ford d/b/a Bob Baker Ford, the dealer and creditor. The Virachacks purchased the Explorer on a credit plan negotiated with Bob Baker Ford. The credit plan had an Average Percentage Rate (“APR”) of 0.9%. To receive this APR, customers including the Virachacks had to forego a $2,000 manufacturer’s rebate offered by Ford Motor Company (“Ford Motor”) for the purchase of its Explorer. The $2,000 manufacturer’s rebate was offered to all other customers purchasing an Explorer paying either cash or credit. The Virachacks argue the foregone rebate was a finance charge. As such, they argue the $2,000 increase in cost incurred by financing at 0.9%…

Malinee B. Virachack and Ritnarone T. Virachack (the Virachacks) appeal the district court’s grant of summary judgment to University Ford, a California corporation doing business as Bob Baker Ford, in their action under the Truth In Lending Act (TILA), 15 U.S.C. § 1601 et seq. Holding that Bob Baker Ford did not fail to disclose the total finance charge, we affirm the judgement of the district court.

FACTS

On November 18, 2001, the Virachacks bought a Ford Explorer from Bob Baker Ford. The purchase was partly on credit. Bob Baker Ford made the following statement in the Retail Sales Installment Contract executed by the Virachacks,

ANNUAL PERCENTAGE RATE The cost of your credit as a yearly rate. FINANCE CHARGE The dollar amount the credit will cost you. Amount Financed The amount of credit provided to you or on your behalf. Total of Payments The amount you will have paid after you have made all payments as scheduled. Total Sale Price The total cost of your purchase, including your down payment of $4303.14 is

0.90% $417.47(e) $22615.33 $23032.80(e) $27335.94(e)

(e) = estimate

The contract also stated that the Virachacks would make monthly payments of $479.85 for 48 months. The…