In Gardner v. Ally Financial Inc., — A.3d —-, 2013 WL 765013 (Md. 2013), the Maryland Court of Appeals held that a $1,000 admission fee transformed a ‘public’ sale into a ‘private’ sale – the latter of which required more detailed post-repossession disclosures and accounting than were provided to the consumer.
The issue before us is limited to the $1,000 admission fee and its impact on the characterization of sales of repossessed cars as “public” versus “private.” FN6 The admission fee in issue must be differentiated from other financial mechanisms employed by auctioneers that are not addressed herein, such as a bidder’s fee, which is a deposit charged to an auction attendee who intends to bid and is later refunded to an unsuccessful bidder, Pyles v. Goller, 109 Md.App. 71, 76, 674 A.2d 35, 37–38 (1996) (involving a $5,000 deposit in order to bid during a public sale); an entry cost, which is “a nonrefundable fee required from bidders,” Ronald N. Johnson, “Auction Markets, Bid Preparation Costs and Entrance Fees,” 55 Land Economics 313, 313, 316 (1979); and a reserve price, which is defined as “[t]he minimum price that a seller is willing to accept for a property to be sold at auction,” National Auctioneers Association, Glossary of Terms, http:// www.auctioneers.org/glossary (last visited Feb. 27, 2013).¶ . . . The debtors in this case contend that the sales of their cars were private, because the $1,000 admission fee restricted access to the sales, and therefore GMAC should have furnished to them the post-sale disclosures required for “private sales.” They construe the different post-sale disclosure requirements, which compel the production of more information to the debtor if the sale is a “private sale,” as evidence that the distinction between the two types of sales is the debtor’s ability to attend. . . . ¶ . . .The “public auction” concept, as well as CLEC’s language, purpose, and design, thus, define the answer to the Certified Question. A “public auction” requires transparency in the process for its own integrity. The post-sale disclosure requirements for a “private sale” are implicated when openness and transparency are not present, to enable a debtor to challenge the procedures used to sell a vehicle that affect the amount of a deficiency judgment assessed against the debtor. ¶ In the present case, the admission fee obscured transparency because bidders and interested parties would have had to accumulate and part with money, at least temporarily, in order to merely observe the auction. The admission fee shielded the process used to sell Ms. Gardner’s and Mr. Scott’s cars from observation and, thus, could not constitute a “public auction” under CLEC. Rather, the sales were, in actuality, “private sales” subject to the post-sale disclosure requirements of Section 12–1021(j)(2).