In Chastain v. N.S.S. Acquisition Corp., 2009 WL 1971621 (S.D.Fla. 2009), Judge Hurley addressed whether an auto dealer violated TILA by engaging in a “spot delivery” and then repossessed the vehicle when third party financing did not materialize. Judge Hurley found no TILA violation, explaining:
However, there is nothing in TILA or Regulation Z which prohibits financing contingencies in consumer contracts as violative of the TILA, nor does plaintiff identify any controlling case authority suggesting that the inclusion of a “financing contingency” in this context renders TILA disclosures “illusory,” “contradictory” or “meaningless.” To the contrary, the Eleventh Circuit has acknowledged the validity of a financing contingency as a “condition precedent” in the TILA context. See Bragg v. Bill Heard Chevrolet, Inc., supra at 1067. Other courts addressing the more specific issue raised here have held that accurate disclosures do not become TILA violations because they are rendered moot due to subsequent failure of financing. See e.g. Janikowski v. Lynch Ford, Inc., 210 F.3d 765 (7th Cir.2000); Leguillou v. Lynch Ford, Inc., 2000 WL 198796 at * *3-4 (N.D.Ill.2000) (“If information disclosed in accordance with [TILA] is subsequently rendered inaccurate as the result of any act, occurrence, or agreement subsequent to the delivery of the required disclosures, the inaccuracy resulting therefrom does not constitute a violation of this part,” citing 15 U.S.C. § 1634); Hunter v. Bev Smith Ford, LLC, 2008 WL 1925265, *3-4 (S.D.Fla.2008). [P] In this case, the parties entered into a conditional contract, which is permitted under Florida law. [footnote omitted] All of the TILA disclosures were accurate when Chastain signed that contract. When he left the dealership with the Buick, he had a right to possession of the automobile under the parties’ “bailment agreement,” but would not become the owner unless and until third party financing was approved or he otherwise paid for the car. Since the condition precedent (third party financing) never occurred, he did not become the owner and the dealer’s TILA disclosures were only rendered inaccurate by its subsequent failure to obtain approval of third party financing. This sequence of events does not state a claim for violation of the TILA. 15 U.S.C. § 1634; Scroggins v. LTD, Inc., 251 F.Supp.2d 1277 (E.D.Va.2003) (TILA requires that disclosures be accurate at the time of consummation; no TILA claim stated where subsequent failure to obtain financing rendered disclosures inaccurate). The court shall accordingly dismiss the plaintiff’s TILA claim with prejudice.