Bodiford v. Atlanta Fine Cars, Inc.

Filing 24

ORDER denying 20 Defendant's Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 11/7/12. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GLENN BODIFORD,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:11-CV-4120-TWT

ATLANTA FINE CARS, INC.,
Defendant.

ORDER

The Plaintiff says he was snookered when he paid the Defendant cash for a
clunker. Now he wants the Defendant to pay. The case is before the Court on the
Defendant’s Motion for Summary Judgment [Doc. 20]. For the reasons set forth
below, the Defendant’s Motion for Summary Judgment [Doc. 20] is DENIED.
I. Background
The Plaintiff Glenn Bodiford purchased a 2004 Nissan Maxima from the
Defendant Atlanta Fine Cars, Inc. (“AFC”).

The purchase price was $8,598.

Bodiford paid $7,700 in cash on July 13, 2011, took possession of the car, and agreed
to pay the remaining $898 by August 13, 2011. (See Pl.’s Resp. to Def.’s Statement
of Undisputed Material Facts ¶¶ 1-5).

T:\ORDERS\11\Bodiford\msjtwt.wpd

The Defendant has submitted several documents allegedly involved in the sale
of the Maxima. The authenticity of many of the documents is disputed.1 The
Defendant’s first exhibit is a “Bill of Sale” identifying the Maxima, listing Bodiford
as the buyer, stating the purchase price, and bearing the signature of Bodiford and a
representative of AFC. (See Def.’s Mot. for Summ. J., Ex. 1). Bodiford does not
dispute that the Bill of Sale is a true and correct copy. (See Pl.’s Resp. to Def.’s
Statement of Undisputed Material Facts ¶¶ 1, 6). The Defendant next offers a
“Precomputed Retail Installment Contract” which shows that the remaining balance,

1

Preliminarily, the Plaintiff notes that AFC has not provided affidavits
authenticating the exhibits it attached to its Motion for Summary Judgment. The
Plaintiff argues that the exhibits should therefore be stricken. Generally, “to be
admissible in support of or in opposition to a motion for summary judgment, a
document must be authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e) and the affiant must be the person through whom the
exhibits could be admitted into evidence.” WTI, Inc. v. Jarchem Indus., Inc., No.
2:10-cv-238-RWS, 2012 U.S. Dist. LEXIS 105840, at *14 (N.D. Ga. July 30, 2012)
(quoting Saunders v. Emory Healthcare, Inc., 360 F. App’x. 110, 113 (11th Cir.
2010)). While the Plaintiff objects to all of the documents attached to the Defendant’s
Motion for Summary Judgment, he admits that Exhibits 1, 6, and 10 are true and
correct copies of documents from the transaction. (See Pl.’s Resp. to Def.’s Statement
of Undisputed Material Facts ¶¶ 1, 6, 9, 14). On the other hand, the Plaintiff contends
he did not receive and has no memory of signing Exhibits 2, 3, 4, and 5, which are not
attached to an affidavit. (See id. ¶¶ 5, 7, 8). Many of these documents seem to be
official state documents obtained through the Georgia Independent Auto Dealers
Association. The Defendant did not file a reply to the Plaintiff’s arguments on the
validity of the documents. The Court will admit the documents for the purpose of this
motion, but the Court notes that any lack of authentication may reduce the documents’
weight and credibility.
T:\ORDERS\11\Bodiford\msjtwt.wpd

-2-

$898, was to be paid by Bodiford on August 13, 2011. (See id. Ex. 2). This document
does not bear Bodiford’s signature, and Bodiford contends he did not receive the
document as part of the transaction. (See Pl.’s Resp. to Def.’s Statement of
Undisputed Material Facts ¶ 5). Likewise, Bodiford contends that he has no memory
of having seen and signed the “Motor Vehicle Dealer Title Reassignment Supplement
Form,” which bears Bodiford’s signature and lists AFC as a lienholder. (See Def.’s
Mot. for Summ. J., Ex. 3; Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts
¶ 7). Bodiford further contends that he never saw the “Buyers Guide” document with
hand-written notations indicating the rebuilt state of the Maxima and emphasizing that
there was no warranty. (See Def.’s Mot. for Summ. J., Ex. 4; Pl.’s Resp. to Def.’s
Statement of Undisputed Material Facts ¶ 8). Bodiford’s signature on this document
is peculiarly written backwards and located among the hand-written notations. (See
Def.’s Mot. for Summ J., Ex. 4). Bodiford claims he did not receive and has no
memory of signing the “Warranty Disclaimer” which bears Bodiford’s signature and
states in several places that the Maxima is being sold “as is.” (See Def.’s Mot. for
Summ. J., Ex. 5; Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts ¶ 8).
Bodiford agrees that he signed the “Odometer Disclosure Statement” offered as the
Defendant’s Exhibit 6, which discloses the Maxima’s mileage. (See Def.’s Mot. for
Summ. J., Ex. 6; Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts ¶ 9).

T:\ORDERS\11\Bodiford\msjtwt.wpd

-3-

Finally, Bodiford contends that AFC did not show him the certificate of title to the
Maxima or have him sign the certificate at the time of sale. (See Statement of
Additional Material Facts in Opp. to Def.’s Mot. for Summ. J. ¶¶ 12-14). Both parties
submitted a copy of the certificate of title, but the Plaintiff’s copy also includes the
second page of the title. (See Def.’s Mot. for Summ. J., Ex. 10; Pl.’s Resp. in Opp.
to Def.’s Mot. for Summ. J., Ex. 1). The second page does not bear the signature of
AFC or Bodiford. (See Pl.’s Resp. in Opp. to Def.’s Mot. for Summ. J., Ex. 1).
Soon after the sale, AFC mailed the Maxima certificate of title to the tag office
in Luverne, Alabama, where Bodiford resided, apparently pursuant to an agreement
whereby AFC would assist Bodiford in obtaining a tag in Alabama. (See Pl.’s Resp.
to Def.’s Statement of Undisputed Material Facts ¶ 12). The Alabama tag office
informed AFC that Bodiford could not obtain an Alabama tag with his current Ohio
driver’s license, and AFC sent Bodiford a letter describing the situation. (See id. ¶
13).
Bodiford claims that the absence of an executed certificate of title prevented
him from acquiring a tag in Alabama. (See id. ¶ 14). Because of the problems in
obtaining an executed certificate of title, Bodiford obtained a Carfax report on the
Maxima. (See Statement of Additional Material Facts in Opp. to Def.’s Mot. for
Summ. J. ¶ 27). The Carfax report revealed that the Maxima was involved in at least

T:\ORDERS\11\Bodiford\msjtwt.wpd

-4-

three accidents and was declared a total loss before Bodiford purchased it. (Id. ¶ 15).
Bodiford alleges this was the first time he learned of the car’s accident history, that
AFC assured him the car had no problems, and that he would not have purchased the
Maxima with knowledge of the problems. (Id. ¶¶ 19-22, 27).
Bodiford brought suit against AFC on November 29, 2011, alleging causes of
action for violations of the Federal Odometer Act, 49 U.S.C. § 32701 et seq., the
Georgia Motor Vehicle Certificate of Title Act, O.C.G.A. § 40-3-1 et seq., the Georgia
Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as well as causes of action
for fraud and breach of contract. (Compl. ¶¶ 37-78).
II. Motion for Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond

T:\ORDERS\11\Bodiford\msjtwt.wpd

-5-

the pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Discussion
The Defendant moves for summary judgment on several grounds. First, the
Defendant contends that the Federal Odometer Act does not provide a cause of action
in this case. Second, the Defendant contends it did not violate the Georgia Motor
Vehicle Certificate of Title Act. Third, the Defendant argues that it did not commit
fraud because it informed Bodiford of the condition of the Maxima at the time of sale.
Last, the Defendant argues that the contract was not breached because it disclosed the
condition of the car and because the Defendant was not required to execute the
certificate of title and provide it to the Plaintiff.2
A. The Federal Odometer Act
The Defendant contends that Bodiford cannot bring a cause of action under the
Federal Odometer Act for the Defendant’s failure to show Bodiford the certificate of

2

The Defendant’s Motion for Summary Judgment sought summary judgment
on the Plaintiff’s claims under the Georgia Fair Business Practices Act (“FBPA”) but
did not offer any argument in its associated brief. (See Def.’s Mot. for Summ. J., at
2). The Plaintiff’s response notes that he brought two claims under the FBPA, one for
the violation of the Odometer Act and one for “unfair or deceptive practices in a
consumer transaction.” (See Compl. ¶¶ 56-62; Pl.’s Resp. to Def.’s Mot. for Summ.
J., at 10-11). The Defendant did not file a reply brief. Accordingly, the Defendant has
not met its burden on the FBPA claims, and they will survive summary judgment.
T:\ORDERS\11\Bodiford\msjtwt.wpd

-6-

title because the Act only provides for civil liability when a transferor intentionally
defrauds a transferee with respect to the mileage on the vehicle. This contention is not
in line with Eleventh Circuit precedent. In Owens v. Samkle Automotive, Inc., 425
F.3d 1318 (11th Cir. 2005), the court held that the plain language of the Odometer Act
did not limit causes of action to those concerning the mileage of the vehicle. The
court noted that “[t]o augment the statutory language with an additional element,
never mentioned by Congress, that the fraud must be ‘with respect to the vehicle’s
mileage’ violates the cardinal rule of statutory construction.” Id. at 1321.

Her e,

Bodiford’s allegations that AFC did not show him the certificate of title or have him
sign the certificate of title, as required by 49 U.S.C. § 32705, with the intent to defraud
him, fall within the purview of the Federal Odometer Act. See Tuckish v. Pompano
Motor Co., 337 F. Supp. 2d 1313, 1315 (S.D. Fla. 2004) (holding that failure to
provide a purchaser with a copy of the certificate of title violates the Odometer Act).
There is a factual dispute as to whether AFC showed Bodiford the certificate of title
prior to the sale. (See Pl.s’ Resp. to Def.’s Mot. for Summ. J., Ex. 1). The Defendant
did issue an “Odometer Disclosure Statement,” stating the mileage on the Maxima,
as well as a “Motor Vehicle Reassignment Supplement,” also stating the vehicle’s
mileage. (See Def.’s Mot. for Summ J., Exs. 3, 6). The disclosure statement is
written, discloses the mileage on the Maxima, and bears the Plaintiff’s and the

T:\ORDERS\11\Bodiford\msjtwt.wpd

-7-

Defendant’s signatures and addresses. Neither the reassignment document nor the
disclosure statement, however, bears all of the information shown on the certificate
of title, most importantly that the Maxima had been totaled and rebuilt. (See Def.’s
Mot. for Summ. J., Exs. 3, 6, 10). Viewing all inferences in favor of the nonmovant
Plaintiff, the Court cannot foreclose a factual finding that AFC withheld the certificate
of title from Bodiford to prevent him from learning of the Maxima’s rebuilt status in
order to induce him to make the purchase. Accordingly, summary judgment should
be denied on these grounds.
Additionally, the Defendant contends it was not required to disclose the
certificate of title because the transaction created a security interest. See 49 C.F.R. §
580.3 (defining transferor for the purposes of the Odometer Act as “any person who
transfers his ownership of a motor vehicle by sale, gift, or any means other than the
creation of a security interest, and any person who, as agent, signs an odometer
disclosure statement for the transferor.”). “Under Georgia law, the only way to create
a security interest in a motor vehicle is under Georgia's Motor Vehicle Certificate of
Title Act, OCGA § 40-3-1 et seq.” State v. Benton, 305 Ga. App. 332, 334 (2010)
(quoting Hairston v. Savannah River Plant Fed. Credit Union, 216 Ga. App. 246, 247
(1995) (internal quotation marks and alterations omitted)). O.C.G.A. § 40-3-2(13)
defines “security interest” as:

T:\ORDERS\11\Bodiford\msjtwt.wpd

-8-

an interest in a vehicle reserved or created by agreement which secures
the payment or performance of an obligation, such as a conditional sales
contract, chattel mortgage, bill of sale to secure debt, deed of trust, and
the like. This term includes the interest of a lessor under a lease intended
as security.
O.C.G.A. § 40-3-2(13). “Furthermore, the Act requires that an agreement that
reserves or creates a security interest in a motor vehicle be in writing.” Benton, 305
Ga. App. at 334 (citing OCGA § 40-3-2(12)).
In Benton, the defendant was accused of converting a truck he had agreed to
purchase with an installment plan. The defendant took possession of the truck but did
not submit any payments to the seller. The seller demanded that the defendant return
the truck and, when the defendant refused, the state charged the defendant with
conversion. The trial court rejected the defendant’s guilty plea because the state had
failed to show the defendant had a legal obligation to return the truck when he missed
the periodic payments. The Court of Appeals, in determining whether the buyer and
seller had created a security interest in the truck, rejected the argument that “it was
implied in [the buyer’s] agreement with [the seller] that [the buyer] no longer had the
right to possess the truck if he was not making the scheduled payments.” Id. at 334.
Instead, the court held that “a security interest in a motor vehicle does not arise merely
from the fact that a buyer agrees to make periodic payments after taking possession.”
Id. “To prove that [defendant] was under a legal obligation to make a specified

T:\ORDERS\11\Bodiford\msjtwt.wpd

-9-

disposition of the truck, therefore, the State was required to prove that [defendant]
explicitly agreed to return the truck to [the seller] if he could not make the payments.”
Id.
Here, there is insufficient evidence to determine conclusively the documents
Bodiford signed created a security interest. It is undisputed that Bodiford agreed to
purchase the Maxima for $8,598. He paid $7,700 up front and owed the remaining
$898 within a month. Bodiford took possession of the Maxima after paying the
$7,700. The several documents put forward by the Defendant does not firmly
establish that Bodiford explicitly agreed to provide AFC a security interest in the
Maxima. While the certificate of title does list Atlanta Fine Cars as holding the first
security interest, there are no additional references to a security interest or agreement
in any of the documents provided by both parties. (See Pl.’s Resp. to Def.’s Mot. for
Summ. J., Ex. 1). Further, Bodiford contends he never saw the certificate of title, and
AFC did not execute the title. (See id.) The Bill of Sale lists the remaining $898
owed to AFC as “deferred cash pickup down payment” as opposed to “balance to be
financed or cash due,” suggesting that the transaction did not involve financing or a
security interest. (See Def.’s Mot. for Summ. J., Ex. 1). The “Precomputed Retail
Installment Contract” identifies AFC as the Holder and Seller and states “You are
giving a security interest in the vehicle being purchased.” (See Def.’s Mot. for Summ.

T:\ORDERS\11\Bodiford\msjtwt.wpd

-10-

J., Ex. 2). However, this document does not bear Bodiford’s signature and Bodiford
claims he has not seen the document. (See Pl.’s Resp. to Def.’s Statement of
Undisputed Material Facts ¶ 5). The document states that there is no financing charge
and that Bodiford must pay the $898 by August 13, 2011. (See id.) Bodiford notes
that the document was not properly authenticated. See WTI, Inc. v. Jarchem Indus.,
Inc., No. 2:10-cv-238-RWS, 2012 U.S. Dist. LEXIS 105840, at *14 (N.D. Ga. July
30, 2012) (noting that at the summary judgment stage documents should be attached
to and authenticated by an affidavit). None of the documents bear the term “security
agreement” or make any reference to collateral. The documents do not describe how
the debt is to be repaid and do not describe what happens in the event of default.
Bodiford argues he did not agree to the creation of a security interest and the absence
of explicit terminology such as “security agreement” and “collateral” supports his
contention. While AFC’s actions in sending the certificate of title to Alabama are
consistent with maintaining a security interest in the Maxima, its actions do not
themselves create an explicit security agreement. See Spoon v. Herndon, 167 Ga.
App. 794, 795 (1983) (noting that compliance with the Motor Vehicle Certificate of
Title Act does not itself “affect the creation of the security interest, which remains a
matter of contract between the parties.”). The Court concludes there is insufficient
evidence of an “explicit agreement to return the [Maxima]” in the case of default. See

T:\ORDERS\11\Bodiford\msjtwt.wpd

-11-

Benton, 305 Ga. App. at 334. Accordingly, there is an issue of fact concerning
whether a security agreement was created and summary judgment should be denied.
See Cantrade Private Bank Lausanne v. Torresy, 876 F. Supp. 564, 573-74 (S.D.N.Y.
1995) (concluding that a purported security agreement was ambiguous and that
therefore there was a question of fact as to whether a security interest was retained).
B. The Georgia Motor Vehicle Certificate of Title Act
The Defendant contends that it complied with the relevant provisions of the
Motor Vehicle Certificate of Title Act because it adhered to O.C.G.A. § 40-3-51
which governs certificates of title when the owner creates a security interest in the
vehicle. The Plaintiff responds that there was no agreement to create a security
interest based on the remaining amount owed on the Maxima, and that AFC was
therefore required to comply with O.C.G.A. § 40-3-32(a). As noted in the preceding
section, there is an issue of fact as to whether a security interest was created.
Accordingly, summary judgment on AFC’s compliance with the Certificate of Title
Act should be denied.
C. Fraud
The Defendant moves for summary judgment on the Plaintiff’s fraud claim
arguing that the disclosure of the “Buyer’s Guide” made the Plaintiff aware of the
state of the Maxima at the time of sale. “The tort of fraud has five elements: a false

T:\ORDERS\11\Bodiford\msjtwt.wpd

-12-

representation by a defendant, scienter, intention to induce the plaintiff to act or
refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” Najem
v. Classic Cadillac Atlanta Corp., 241 Ga. App. 661, 664 (1999) (quoting Howard v.
McFarland, 237 Ga. App. 483, 483-84 (1999)). “For an action for fraud to survive a
motion for summary judgment, there must be some evidence from which a jury could
find each element of the tort.” Id.
Here, the Plaintiff has created a genuine issue of material fact sufficient for his
fraud claim to survive summary judgment. Specifically, the Plaintiff has shown that
the “Buyer’s Guide” contained in Exhibit 4 to the Defendant’s brief may not have
been signed by or shown to the Plaintiff. While the Plaintiff’s signature does appear
on the document, it is mirrored and inserted into handwritten notes in a peculiar
fashion. (See Def.’s Mot. for Summ J., Ex. 4). Likewise, Bodiford claims he did not
receive and has no memory of signing the Defendant’s Exhibit 5, which is a warranty
disclaimer that bears Bodiford’s signature. (See id. at Ex. 5; Pl.’s Resp. to Def.’s
Statement of Undisputed Material Facts ¶ 8). Bodiford also argues that the document
was not properly authenticated. See WTI, Inc. v. Jarchem Indus., Inc., No. 2:10-cv238-RWS, 2012 U.S. Dist. LEXIS 105840, at *14 (N.D. Ga. July 30, 2012) (noting
that at the summary judgment stage documents should be attached to and
authenticated by an affidavit). Finally, although the warranty disclaimer bears a stamp

T:\ORDERS\11\Bodiford\msjtwt.wpd

-13-

that states “possible frame damage” and “ABS and SRS light on,” it does not state that
the Maxima had been rebuilt. (See Def.’s Mot. for Summ J., Ex. 4). Only the
certificate of title and the Buyer’s Guide’s handwritten notes state that the Maxima
had been rebuilt, and Bodiford has created an issue of fact as to whether he was
provided with these documents. Therefore, at this stage, it is unclear whether AFC
made misrepresentations to or withheld information from Bodiford, in particular
concerning the rebuilt status of the vehicle, in order to induce the Plaintiff to purchase
the Maxima. This uncertainty also creates issues of fact with respect to scienter,
intent, and justifiable reliance. Further, the Plaintiff has created an issue of fact with
respect to damages because he paid $7,700 for the Maxima under allegedly fraudulent
circumstances. Accordingly, summary judgment should be denied on these grounds.
D. Breach of Contract
The Defendant moves for summary judgment on the Plaintiff’s breach of
contract claim arguing that the contract was not breached because the Defendant
disclosed the condition of the car and because the Defendant was not required to
execute the certificate of title and provide it to the Plaintiff. “The elements for a
breach of contract claim in Georgia are the breach, which must be more than de
minimis, and the resultant damages to the party having the right to complain about the
contract being broken.” TechBios, Inc. v. Champagne, 301 Ga. App. 592, 595 (2009).

T:\ORDERS\11\Bodiford\msjtwt.wpd

-14-

As has been discussed above, there is an issue of fact as to whether a security interest
was created, and the existence of a security interest affects whether the Defendant was
required to execute the certificate of title and provide it to the Plaintiff. Additionally,
as discussed in the preceding section, there is an issue of fact with respect to the
representations contained in the documents the Plaintiff signed. At the very least, the
Plaintiff has created an issue of fact with respect to the contract because the absence
of his signature in some documents, the absence of authentication for other
documents, and the presence of his backwards signature in the Buyer’s Guide render
the overall contract ambiguous. See St. Charles Foods, Inc. v. America’s Favorite
Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (holding that ambiguity in a contract
must be resolved by the jury). Accordingly, summary judgment should not be granted
on Bodiford’s claim for breach of contract.
IV. Conclusion
For the reasons set forth above, the Defendant’s Motion for Summary Judgment
[Doc. 20] is DENIED.
SO ORDERED, this 7 day of November, 2012.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

T:\ORDERS\11\Bodiford\msjtwt.wpd

-15-