Virginia Lawyers Weekly VA Lawyers Weekly
Where the purchaser of a vehicle argued she was entitled to void the transaction and keep the vehicle because the defendant failed to make certain required disclosures, her suit was dismissed. She relied on statutory provisions that apply only to a security interest in a principal dwelling.
Background
In June 2022, Janay Jones bought a car from Acura of Laurel. She applied for credit to finance the purchase. One week after purchasing the car, Jones notified the defendant, American Honda Motor Co. Inc., or AHMC, that it had failed to make certain required disclosures during the transaction, and that she was exercising her right to rescind her credit application, void the transaction and keep her car pursuant to the Truth in Lending Act, or TILA, and its implementing regulation (Regulation Z).
After sending two more notices, Jones sued AHMC, asserting that because AHMC did not make certain required material disclosures, she had a right to rescind the transaction and keep the car. AHMC now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the right of rescission does not apply to this transaction, and that Jones named the wrong defendant in this case.
In addition, Jones has filed an emergency motion for an order against the defendant to retrieve her car from the repossession company while the case proceeds. Finally both parties have filed motions to strike the others’ briefs.
Motions to strike
Jones contends that the court should strike AHMC’s reply brief because it repeats arguments from its opening brief, making the reply brief redundant. But the rules permitted AHMC to file a reply brief responding to Jones’s response in opposition, and nothing prohibited AHMC from reiterating arguments it had made in an earlier, related filing. Further, Jones has not explained how AHMC’s reply brief has prejudiced her beyond her disagreement with the arguments, nor has she established any other reason for the court to grant this “drastic remedy.”
AHMC moves to strike Jones’s sur-reply to AHMC’s motion to dismiss, arguing the rules do not allow sur-replies without leave of court, which was not obtained here. While AHMC is correct, the court will nevertheless accept Jones’s filing. It does not prejudice AHMC; Jones largely repeats her arguments for why the court should deny the motion to dismiss and ultimately resolve this case in her favor, and her new arguments add nothing that would save her claim.
Rescission
Jones bases her claim on the right of rescission on TILA and Regulation Z. But the relevant provisions of TILA and Regulation Z make clear that the right of rescission applies only when the security interest retained in the transaction “is or will be … a consumer’s principal dwelling.” Nowhere does Jones allege that her credit application or the underlying transaction involved a security interest in her principal dwelling. Jones’s claim relates to disclosures made during the purchase of a car, not a foreclosure process for a primary dwelling. The court, therefore, will grant AHMC’s motion to dismiss.
Recovery
On Nov. 9, 2022, AHMC repossessed the car. In her emergency motion, Jones asks that “the Court allow [her] to retrieve the vehicle and to stop the Defendant from accruing interest on the vehicle while in storage and out of Jones’s possession, as Plaintiff is trying to remedy the situation to bring the balance back to current as we conclude and continue our court case and hearing.” Because the court will grant AHMC’s motion to dismiss, the court will not “continue to proceed with the case.” Accordingly Jones’s emergency motion is denied as moot.
Parties’ motions to strike denied. Plaintiff’s emergency motion denied. Defendant’s motion to dismiss granted.
Jones v. American Honda Motor Co. Inc., Case No. 3:22-cv-558, Feb. 6, 2023. EDVA at Richmond (Gibney). VLW 023-3-048. 10 pp.
