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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : BADEBANA ATCHOLE : v. : Civil Action No. DKC 2003-3464

: SILVER SPRING IMPORTS, INC., et al. : MEMORANDUM OPINION Presently pending and ready for resolution is the joint motion for partial summary judgment (Paper 43) by Defendants Silver Spring Imports, Inc. d/b/a/ Darcars Mitsubishi (SSI) and Mitsubishi Motors Credit of America, Inc. (MMCA) as to counts I, II, and V of Plaintiff's complaint. briefed and the Local court Rule now rules, For The issues have been fully no hearing being deemed

necessary.

105.6.

the

following

reasons,

Defendants' motion will be granted as to counts I and II, and denied as to count V. I. Background The material undisputed facts are as follows. On or about March 27, 2003, Plaintiff, Mr. Badebana Atchole, visited

Defendant SSI's Mitsubishi dealership seeking to purchase a new vehicle. Shortly after arriving, he asked to speak with a Despite being informed

French-speaking sales representative.

that the dealership had no such person on staff, Plaintiff

decided to proceed with his vehicle purchase.

Although he

initially expressed interest in a sport utility vehicle, the Mitsubishi Montero, Plaintiff ultimately purchased the more economical Diamante sedan. Plaintiff alleges that as he drove home from the dealership, the vehicle began to pull strongly to the right. Plaintiff's Thinking

wife and children also allegedly felt the disturbance.

that the movement could be due to a flat tire, Plaintiff pulled over to the side of the road. appeared to be in working order. He found that all four tires Assuming that the dealership

would be closed by then, Mr. Atchole decided it was too late to turn back. He decided to drive home slowly and report the He also alleges that he experienced some The next day, Plaintiff When he

problem the next day.

difficulty getting the car to restart.

slowly drove the vehicle to work without incident.

attempted to drive home after his shift, the car refused to start. Plaintiff's co-worker then tried to jump start the

vehicle using a company van, but was unsuccessful. After notifying Defendant SSI of the problems he was

experiencing, Mr. Atchole was told to contact a towing company and have the car brought back to the dealership. claims that Defendant SSI's sales Plaintiff also after

representative,

allegedly conferring with his manager, promised to give him a

2

new Montero Sport as a replacement for the defective Diamante. Consequently, dealership, Plaintiff given a rode car with on the tow the truck to the and

was

loan

for

weekend,

allegedly was told to return several days later to obtain his replacement vehicle. Upon his return to the dealership,

Plaintiff was told that the Diamante had been repaired and that he would not be given a replacement vehicle free of cost. Plaintiff refused to retake possession of the repaired Diamante, stating that he had lost confidence in the vehicle and did not consider it to be sufficiently reliable for use as a family car. On December 4, 2003, Plaintiff filed suit alleging that Defendant SSI, through a series the of fraudulent the acts and

misrepresentations

surrounding

purchase

automobile,

committed violations of the Magnuson-Moss Warranty Act (counts I and II) and Maryland's Consumer Protection Act (counts III and IV), breach of contract (count V) and fraud (count VI). In

count VII of the complaint, Plaintiff alleges that Defendant MMCA , as holder of an Installment Contract ("Contract") entered into between Plaintiff and SSI, is derivatively liable for each of the claims asserted against SSI in counts I through VI, pursuant to a regulation developed by the Federal Trade

Commission (FTC) known as the FTC Holder Rule.

See 16 C.F.R.

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