Court of Appeal (Cal.) Says Post-Dated Checks Given at Time of Sale and Informal Agreement to Deposit Them Upon Date of Check Are Not “Deferred Down-Payments” Under Rees-Levering and Do Not Violate the “Single Document Rule”

In Nichols v. Century West, LLC, 2016 WL 4368157, at *7–8 (Cal.App. 2 Dist., 2016), the Court of Appeal held that post-dated checks were not “deferred down-payments” under ASFA and did not violate the single document rule.

None of these cases offers guidance on whether post-dated checks provided to a dealership at the time of a sale should be categorized as “deferred” down payments in a contract under the Act instead of as regular down payments. The circumstances here, where Nichols provided Century West with checks on the day she purchased the X6, are unlike those in Rojas and Munoz, in which the buyers paid portions of their down payments at later dates. Moreover, unlike the circumstances in Bratta, Highway Trailer, Rojas, and Munoz, the contract’s notation of $3,000 as the down payment for the X6 accurately stated the parties’ understanding as to the down payment Nichols was making for the X6, and matched the amount on the checks Nichols provided on the day she purchased the X6.   Even under de novo review, it is the appellant’s responsibility to affirmatively demonstrate error. (See Mark Tanner Construction, Inc. v. HUB Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th 574, 583-584.) While it is arguable that a post-dated check could be categorized as a “deferred” down payment rather than a down payment, neither the statutory language, legislative history, nor the case law compels such a result. The Act is intended to include complete and accurate disclosures about vehicle financing, and here the contract accurately stated the parties’ understanding, the amount of the down payment, the amount of the trade-in, and the amount financed. We therefore find no error in the trial court’s rejection of Nichols’s argument that the contract violated the Act by listing the three-check down payment as a down payment rather than a deferred down payment. Nichols is therefore not entitled to unwind the contract based on alleged violations of section 2982, subdivisions (a)(6)(D) or (c).    Nichols also argues that the contract violated the single document rule in section 2981.9: “Every conditional sale contract subject to this chapter shall be in writing and … shall contain in a single document all of the agreements of the buyer and seller with respect to the total cost and the terms of payment for the motor vehicle, including any promissory notes or any other evidences of indebtedness.” Nichols argues that because she and Century West agreed that at least one of her checks would not be deposited until November 9, and that agreement was not stated in the contract, the contract violated the single document rule. She reasons that “[w]hen a payment is due is a ‘term of payment,’ ” and therefore the dates the checks were to be deposited should have been disclosed as a “term of payment” under section 2981.9. She concludes, “Because the Contract does not accurately disclose the true amount of the cash down payment, or the amount of or timing of the deferred down payments, and the information cannot be learned from the single Contract, the Contract violates the [Act’s] single document rule.”  We have found no authority supporting Nichols’s assertion that an informal agreement to accommodate a customer by not immediately depositing a check constitutes a “term of payment” requiring disclosure under section 2981.9. As stated above, when Nichols provided her $3,000 down payment checks to Century West, no further down payment was due from Nichols. Nichols and Century West did not reach any agreement that Nichols was to pay an additional down payment at a later date. Moreover, nothing in the history or stated purposes of the Act suggests that the Act was intended to allow a buyer to rescind a contract where a dealer has accommodated a buyer’s request to hold a down payment check for a few days. And to the extent Nichols’s argument rests on the assumption that the checks constituted a deferred down payment and should have been listed in the contract as such, her argument fails for the reasons stated above.  In sum, nothing in the Act compels a finding that an informal agreement to hold down payment checks provided to a dealership at the time of the contract makes the down payment a “deferred” down payment under the Act. The trial court therefore did not err when it ruled in favor of defendants on Nichols’s claim under the Act.