i'll try to do my best through it anyway this case involves the truth in lending act in the purchase of an automobile i represent a car dealership that sells a large number of used vehicles and it it has it deals with but with an insurance charge of about sixty dollars for something called b s i b s i is the insurance that would cover the lender if for example the car was damaged in an accident and the borrower didn't have insurance it would cover that gap it would damage in the car if it was repossessed and then it got damaged somewhere after the repossession so there was a charge for sixty dollars that was included in this kind of cut to the chase in this case because i thought it really deals with whether it was appropriate to grant summary judgment could determine that the parties agreed to have that provision as part of their understanding or their contract it's even a little different than that and i'm going to probably say you're both raising issues that come about from it but here's the issue that the truth in lending act doesn't require you to check a box or not check a box that requires you that you disclose the fact that this charge could you can you can get this insurance from somebody else and your form s starts by saying that this whole thing this whole disclaimer this whole disclosure only applies if the box is checked that's correct and this is in this document and it well i wasn't there when it happened what it appears to have happened is that this dot it was generated by a computer and the check is to the left and up a bit is not just to the that's what i read you were brief i thought it's like there's a box and there's an x like here instead of here then i looked at the floor mm i couldn't even find the x on for actually just two issues that i think support the fact that it makes sense that the check is there it's clearly a mistake that check was where it is but if you look at the form first of all why would i even think that  is has any reference to checking a box and i have an answer for that let me take a go when you look at this form and you know something when i was prepared for this i'm reading through it too because you know i don't know if you're like me i've bought cars before and i can't tell you that i read the documents and i know to read the documents but here on that where that box is supposed to be checked e c the check up the line in that little area the middle also in that box is typed in the sixty dollars charge for the b s i it's included in that box and why would it why would anyone even someone who is not like you want to and does read all the documents read any further then if the preceding box is checked if the box isn't tracked why am i reading the rest of it when you're reading that when you when you look at that box there is that the text within the box somebody has actually put in the charge for the b s i so it's not left blank which would be it would be left blank if no one was chechen that by checking the box to charge them i wouldn't even look at what's typed in it says if the box is checked ok i'm outta here thank god i've got to hope they do find a printer read i don't need to read this one because the box ain't checked it's a little bit more than that though too because if you look where that check is on the fo there isn't any other boxes to check when we even think it's a check if it's two x s if there was an x or two x s somewhere on the you know they spelled box wrong and put two x s somewhere but x i'm supposed to think is going to go  with the box to be checked well you're on his eye and that is in a way the issue in the case although i you know i don't want to place the issue as the box checking issue the issue is whether or not there was a full disclosure of the fact that you could purchase this insurance elsewhere and everyone's agreed that you x if you arguing them that there is some other disclosure that there's a factual issue because there's testimony that the plaintiff was told this somewhere else look at it and i say there's obviously two checks and there's no place else for them to go there's no other box that you know there is we don't have four paragraphs check this like this like this like this there's only one box that has to be checked on that for every agreed with you don't think the charge would be with that i think the charge would be you know whether they found that the charge would be that under the truth in lending act there's an obligation to provide a clear disclosure of the fact that the insurance could be purchased elsewhere and was there a full or clear disclosure and that's very difficult for me to conclude and to go with you with this argument given that instruction such as steve it's not even just disclosure has to be clear disclosure and i know i understand the their exes and there is a reference to the sixty dollars on the first page but how can it be clear disclosure when you read that box and the person it says if the preceding boxes checks we require via science surance for the initial term i don't know it would if i read that box and was trying to figure out what i needed to do and i saw there's no check next to this box so know the rest of it i don't even have to read and i don't i don't know if we would do that i mean to tell you the truth i would probably look at it and say why or is there a check here instead of there is it meant to be there i'm not saying that every customer would do that and you know it in my experience now having represented this client for a period of years i've heard i've heard customers say all kinds of things including i don't read any of the documents i just want my calls get a different question yes this is not a question action no it's individual action so the mountain controversy is how just the more aggressively you fight the more that sixteen thousand dollar number goes up it does sometimes you know it does you paid the money in the first place on something like this which is a kind of random one off event and i understand if there's some practice yeah that some inventive lawyer is coming with a class action and you're going to be paying two thousand dollars times a million people no that's true but you do wonder why we are here over two thousand dollar maybe this a in a more comical way if i go to a cocktail party yes i do hear attorney jokes but the car dealer jokes are even worse you don't want to be seen you want to be adjudicated to have failed in their  that may be the reality of a business when you're in a consumer business as are and the issue with the truth in lending act is that it's a it's a good act to protect lots of people but it also doesn't necessarily balance the fact that on the other side in dealerships there are human beings working and sometimes large issues arise from simple errors and in this case clearly they intended to check the box clearly if there was a check there clearly there was no other place that had to be checked on this and we all agree that the  itself does meet the requirements of the truth in lending act and that the clause the customer knew that there was a sixty dollar entry there and that there was a charge for it so that box was utilized so what you're sort of suggesting is that once i don't see the box i go off in another direction typing i have on that page seem to be in place except for that it's print it's printed as i understand it i don't work in their dealership but it's printed on a computer printer it means the paper somehow moved or something during the process is what  know the other thing that gets to my mind is what you are asking for is a jury trial you're going to have a jury of people who are not car dealers but who are car buyers and then you're going to have a jury trial and  virtually well right now i'm getting maybe sixteen thousand dollars and after the jury trial that's going to be a much higher number we really think the jury is going to not just that whatever we think  actions nor do i intend to convert it into one i was not actually the lawyer below that was mr blin up in connecticut in any event there is i can agree with everything that's been said by the court so far there is however one additional argument that was not touched upon which was an alternate grounds that judge bryant didn't touch upon under regulations e implementing the truth in lending act premiums for insurance may be excluded from the finance charge if the following conditions are met insurance coverage may be obtained from a person of the consumer's troy's and this fact is disclosed here we've been your honour's have been discussing the question of whether the fact is this closed and there's a further gloss on that in fifteen us c sixteen zero five c it says not only want to smoke to be disclosed but it has to be clearance you've got to show a clear and specific transmission of this information a clearance specific statement in writing is this clear and specific statement in writing frankly if the jury found anything but in favor of the plaintiff i think there'd be a very strong the parties are putting this provision into the contract what you're saying then is that it's a question of whether this box is the language in this box becomes operative as part of the contract right but there are that's not boxes check even though even though it's phrased in a either way it's still a problem for the defendants and for the other for the appellants it's still a problem because regardless regardless of whether it's part of the contract or less it's much the same be in the news i mean if there's some theory that she should never have been charged the sixty dollars in the first place no no no we're we're we're suing on the theory that the sixty dollars should have been included as part of the finance charge and therefore the need to be disclosed right exactly and therefore it needed to be disclosed both under fifteen u s c sixteen zero five and under the corresponding section of regs e twelve c f r ten twenty six point force d but in any event there is one other aspect that was not touched upon by judge bryant because it apparently she felt that this issue is the terminal this issue meaning the failure to check the box the thirty six deposition testimony indicates that a twenty eight and he testified to the effect that it's p c i the finance company that selected the insurance carrier and that was there was no choice to miss franco to select another carrier so therefore under regs e she didn't have that option to begin with so regardless of the box checked the not box check if she has the option yeah but the box the box were checked and she said i want to shop around for the insurance and what would happen even if she wasn't in fact given the option in the sense that since she didn't raise the issue not having seen the box object or whatever fulfilled she wasn't given that option anyway the person in charge of all these matters mr el bano testified that she didn't have that option you know you tell me the exact language because what i'm looking at is something that says well the lenders insurance so we picked it we've course they take it if she doesn't assert a right to shop around and what else is going to happen i suppose the is checked she reads it she says that's all right i don't know any insurance companies do what you gotta do then they pick the insurer now but they say they pick the insurer and then it says on page twenty eight question and the consumer does not have the option to purchase it elsewhere correct mr obama right so he specifically says he or she doesn't have the option to go elsewhere and to see the first section regs he says that you have to have both promise not only do you have to have the right to go shop for the s i insurance elsewhere we not only do you have to have the notice this clear and specific notice in writing that's require under the u s c and required under under regs easy but you have to be given that option has to be real it can't be it can't be an option that doesn't exist so there's a separate problem that they also fell to fulfill what i'm saying is there's an alternate pronged the thank you kind of work backwards from that question the issue is that you may find this hard to believe in the in the some four thousand cars they sell each year nobody has ever purchased v a s i elsewhere it generally is purchased as a group policy that the lender gets and they say there's a way they sell it is gets allocated by car there's a way it's done in the industry you can't really call your car insurance company and say i'd like to buy a vs a i pod but but hey i'm not the regulator who created this rule if they mean what mr el bano was testifying to was i don't think mr al bano knows where you can get it because it just isn't something it's just something the lenders do and and that's that but also the truth in lending act doesn't require us to go find them other insurance is simply to make that statement the interesting question that came up is the issue of contract and notice here i think counsel's right it doesn't have to be a contractual term because that what truth and lending says we have to give notice at the same time if it is a contractual term i think that satisfies notice at that point because that is part of the contract and the parties are going to be deemed to have had it the notice we have is is in fact perfect it's everything you're supposed to have and that was in front of the buyer the you know so this issue of the check in the box in terms of a contract term is not the issue you are right house as you can have a clear  be in dealing with that and here's the interesting thing that went well and i thought through the pros the parole evidence issue you know and and as a trial lawyer we all try at times used for all evidence that usually just gets you into trouble somehow but here's the thing what statement if there's an ambiguity it's not a clear state and then it went at that point though if you look at the the contract analysis doesn't open the door for parole evidence i think more a contract case it might not it's not a contract case it's a question of whether there was the if you had a perfect this perfect disclosure but instead of saying if the box is checked there's something typed in above that says don't bother reading what's in the next bob because it doesn't apply to your contract the fact that the disclosure that's in the box is perfect wouldn't matter in that circumstance it wouldn't if we basically told them to ignore the notice but here we didn't do that now i understand that that's every year but you didn't assuming that no reasonable jury could find the box is checked the question is is the reader effectively being told don't bother to read this because if they're told to read it if the box is checked well the issue may be under truth in lending as to like if we have on the right hand everything's done perfectly and we have on the lot left the end everything's done wrong am i one step over from perfectly or my ten steps over from perfectly with this contract and they make the argument about almost trying to argue it's a strict liability offense but that's not what triggered lending says it says you have to apply the terms of the truth in lending act the way they're written and at the end of the day we're not trying to vary those terms it's the factual issue as to whether we did it or not and whether we succeeded or lending in about summary judgment which is is a relevant issue to people and as a trial lawyer that's been on both the plate the plaintiffs and the defense side how courts apply summary judgment rules is a very very serious thing and we all know when we try cases in different jurisdictions different courts look at things vastly differently and it's in an important thing and including giving advice to clients like in a case like this thank you your honors