In Mahdavi v. NextGear Capital, Inc., 2015 WL 1526538 (E.D. Va. 2015), Judge Buchanan found that a triable issue of fact existed as to whether a floorplan lender’s security interest was superior to a buyer-in-the-ordinary-course’s interest.
Courts have used a variety of factors to determine if someone is a buyer in the ordinary course of business including where the sale of a vehicle took place (Al Maroone Ford, Inc. v. Manheim Auto Auction, Inc., 208 A.2d 290, 293 (Pa.Super.Ct.1965)), who holds the title to the vehicle (Genesee Reg’l v. Palumbo, 799 N.Y.S.2d 883, 887 (N.Y.Sup.Ct.2005); but see Daniel v. Bank of Hayward, 425 N.W.2d 416, 421 (Wis.1988)), whether a down payment has been made and the goods identified to the contract (Daniel, 425 N.W.2d at 417, 422–23), whether the purchaser had any knowledge of defects in the seller’s title (Rawls Auto Auction Sales, Inc. v. Dick Herriman Ford, Inc., 690 F.2d 422, 428 (4th Cir.1982), Marine Unlimited, Inc. v. Farnham Motor Co., Inc., et al., 49 Va. Cir. 321, 322–23 (Va.Cir.Ct.1999)), whether licenses were obtained for the vehicles for personal use (First Nat’l Bank & Trust Co. of El Dorado v. Ford Motor Credit Co., 646 P.2d 1057, 1061–62 (Kan.1982)), Bank of Illinois v. Dye 163 Ill.App.3d 1018, 1022 (App. Court Ill 1987)), and whether the purchaser had any knowledge that it might not be a buyer in the ordinary course (Fifth Third Bank of W. Ohio v. Chrysler Fin. Co., 2000 WL 1513923, at *6 (Ohio Ct.App. Oct. 13, 2000). In this case, NextGear has presented evidence to support its contention that Mrs. Mahdavi is not a buyer in the ordinary course of business. This evidence includes that the test drive of the vehicle did not follow the standard procedure of most test drives (Mahdavi Dep. (Dkt.66–8) 21:1–14), that the sale did not take place at the dealership (Id. at 21:14–22), that Mrs. Mahdavi did not negotiate the terms of the sale (Id. at 29:4–14), and that NextGear still holds an original title to the BMW (NextGear’s Mem. Supp. Mot. Default J. (Dkt.66) Ex. 4). However, plaintiff has also presented facts which could support a finding that Mrs. Mahdavi is a buyer in the ordinary course of business including a Retail Purchase Agreement for the BMW signed by Mrs. Mahdavi (Opposition to NextGear (Dkt.74) Ex. 3), evidence of a $23,000 down payment for the vehicle as well as a loan with Pentagon Federal Credit Union for the remaining balance in Mrs. Mahdavi’s name (Id. at Exs. 8, 6, 10–12), and a Maryland title for the BMW (Id. at Ex. 7). Additionally, plaintiff has provided no evidence that Mrs. Mahdavi had any actual knowledge of any fraud occurring at BW Auto which would have made her title suspect. The facts presented by NextGear as evidence of Mrs. Mahdavi’s status have been sufficiently disputed by plaintiff to survive the summary judgment stage. Therefore, as to Counts I and II of plaintiff’s complaint, NextGear’s Motion for Summary Judgment is DENIED.