* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### March 31, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SONYA J. McMILLEN, Plaintiff-Appellant,

v. DRIVE FINANCIAL SERVICES, L.P., Defendant-Appellee. No. 05-3120 (District of Kansas) (D.C. No. 03-CV-2618-CM)

ORDER AND JUDGMENT *

Before MURPHY , EBEL and HARTZ , Circuit Judges.

I. Introduction Plaintiff-Appellant Sonya McMillen and Defendant-Ap pellee Drive Financial Services, L.P. were parties to a retail i nstallment contract (“RIC”) for the purchase of a vehicle. When McMillen defaulted on the RIC, Drive Financial repossessed the vehicle. Drive Financial returned the vehicle to McMillen and-2-

reinstated the RIC after McMillen paid the outstand ing balance due under the RIC. Subsequently, title to the vehicle was transf erred from McMillen to Drive Financial. McMillen brought suit in state court, a lleging the RIC was void pursuant to Kan. Stat. Ann. § 8-135(c)(7) because D rive Financial failed to timely deliver title to her after the RIC was reinstated a nd title was transferred to Drive Financial. McMillen also alleged various violation s of the Kansas Consumer Protection Act. After the case was removed to fede ral court based on diversity jurisdiction, the district court granted summary ju dgment to Drive Financial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm

. II. Background The district court found the following facts undisp uted, and neither party contests them on appeal. McMillen entered into a RIC with Randy Curnow Buick Pontiac GMC Truck, Inc. for the purchase of a Ponti ac Sunfire in September 2001. The RIC was subsequently assigned to Drive F inancial. At the time of the assignment, the Kansas Certificate of Title for the Sunfire listed Drive Financial as a lienholder and was properly assigned and deliv ered to McMillen. McMillen continually defaulted on the RIC, and Driv e Financial repossessed the vehicle on February 7, 2002. When McMillen paid the outstanding balance due under the RIC, Drive Financ ial reinstated the RIC. The-3-

Sunfire was returned to McMillen on February 15, 20 02. At that time, title to the Sunfire still reflected McMillen as the owner and D rive Financial as a lienholder. On March 1, 2002, Drive Financial’s repossession ag ent completed a repossession affidavit reflecting the February 7, 2 002 repossession of the Sunfire. Subsequently, a new title was issued listing Drive Financial as the owner of the vehicle. McMillen did not become aware title was n o longer in her name until September 2002, when she attempted to renew the lic ense plates on the vehicle. Drive Financial requested that McMillen complete a power of attorney so it could transfer title to her. Drive Financial signed titl e of the Sunfire back to McMillen on February 24, 2003. McMillen continued to miss payments after the RIC w as reinstated, and she was never again current on her payments. On March 11, 2003, Drive Financial repossessed the Sunfire a second time. Because McM illen failed to redeem the vehicle, Drive Financial sold it at a private sale. After McMillen’s account was credited with the sale price, the account showed a deficiency balance of $7855.45. McMillen filed suit in state court alleging Drive F inancial violated Kan. Stat. Ann. § 8-135(c)(7). The statute prohibits th e sale of a vehicle unless title is transferred from the seller to the buyer at the tim e of delivery of the vehicle or at a time agreed upon by the parties within thirty day s of delivery. Kan. Stat. Ann. § 8-135(c)(7). McMillen claimed Drive Financial viol ated the statute by failing to1 McMillen’s complaint also stated a claim for defamation, but she

abandoned this claim pursuant to a pretrial order d ated July 29, 2004. -4- timely convey title back to her after the RIC was r einstated and title was transferred to Drive Financial. McMillen also alle ged Drive Financial violated various provisions of the Kansas Consumer Protectio n Act involving unconscionable and deceptive acts and practices. 1 Drive Financial removed the case to federal court and filed a motion for summary judgment. The district court granted summary judgment to Drive Financial. The c ourt concluded Kan. Stat. Ann. § 8-135(c)(7) was not applicable because Drive Financial’s reinstatement of the RIC did not transfer ownership of the vehicle and thus was not a sale. The district court determined Drive Financial did not o btain ownership of the vehicle after the first repossession on February 7, 2002. Therefore, the district court reasoned, Drive Financial had no ownership interestin the Sunfire to transfer to McMillen upon reinstatement of the RIC. Additional ly, the district court determined Drive Financial was entitled to summary judgment on McMillen’s Kansas Consumer Protection Act claims because those claims were premised on McMillen’s proving a violation of Kan. Stat. Ann. § 8-135(c)(7). III. Discussion We review a district court’s grant of summary judgm ent de novo , applying the same legal standard used by the district court. Bryant v. Farmers Ins. Exch. ,-5-

432 F.3d 1114, 1124 (10th Cir. 2005). Summary judg ment is appropriate if there are no genuine issues of material fact and the movi ng party is entitled to judgment as a matter of law. Id . When applying this standard, we view the evidenc e and draw reasonable inferences therefrom in the light m ost favorable to the nonmoving party. Id

. A. McMillen’s Kan. Stat. Ann. § 8-135(c)(7) Claim McMillen alleges Drive Financial violated Kan. Stat . Ann. § 8-135(c)(7) by failing to timely deliver title to the Sunfire backto her after the RIC was reinstated and title was transferred to Drive Finan cial. McMillen contends violation of the statute rendered the reinstated RI C unlawful, fraudulent, and void. Kan. Stat. Ann. § 8-135(c)(7) provides, in r elevant part,

It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered, unless, at t he time of delivery thereof or at a time agreed upon by the parties, no t to exceed 30 days, inclusive of weekends and holidays, after the time of delivery, there shall pass between the parties a certificate of tit le with an assignment thereof. The sale of a vehicle required to be regi stered under the laws of this state, without assignment of the certi ficate of title, is fraudulent and void, unless the parties shall agree that the certificate of title with assignment thereof shall pass betweenthem at a time other than the time of delivery, but within 30 days thereof. McMillen argues Drive Financial’s reinstatement of the RIC and return of the Sunfire to McMillen constituted a sale, obligating Drive Financial to comply with the statute by passing title to McMillen within thi rty days.-6-

Kansas’ Motor Vehicle Registration statute does notdefine the term “sale,” and thus, we are confronted with a question of statutory interpretation. See Kan. Stat. Ann. § 8-126 (defining terms in Kansas’ MotorVehicle Registration Act). We begin with the plain language of the statute. United States v. Ortiz , 427 F.3d 1278, 1282 (10th Cir. 2005); see also Melton v. Prickett , 456 P.2d 34, 40 (Kan. 1969) (noting provisions of Kansas Motor Vehicle Re gistration Act should be interpreted literally). When a statute does not sp ecifically define a term, we construe the term in accord with its ordinary or natural meaning. Smith v. United States , 508 U.S. 223, 228 (1993). “[A] sale is a transfe r of property for a valuable consideration.” Jones v. Corbyn , 186 F.2d 450, 453 (10th Cir. 1951). Drive Financial’s reinstatement of the RIC did not constitute a sale in this case because McMillen did not give valuable consideratio n for the reinstatement. Drive Financial reinstated the RIC upon McMillen’s payment of the outstanding balance due under the RIC. Doing something that on e is already legally obligated to do, however, does not constitute consideration. Apperson v. Sec. State Bank, 528 P.2d 1211, 1219 (Kan. 1974). Because McMillen gave no valuable consideration for Drive Financial’s reinstatement o f the RIC, there was no sale and Kan. Stat. Ann. § 8-135(c)(7) does not apply. Even if reinstatement of the RIC could arguably be labeled a sale, Drive Financial did not violate Kan. Stat. Ann. § 8-135(c )(7). The statute requires title-7-

to be transferred from the seller to the buyer at t he time of delivery of the vehicle or at a time agreed upon by the parties within thirty days of delivery. Kan. Stat. Ann. § 8-135(c)(7). Drive Financial reinstated the RIC on February 15, 2002. On that same day, McMillen regained possession of the Sunfire. At that time, the title to the vehicle listed McMillen as the owner a nd Drive Financial as a lienholder. Title was not transferred to Drive Fin ancial until after March 1, 2002, when Drive Financial’s repossession agent filed a r epossession affidavit. Therefore, title to the vehicle was in McMillen’s n ame on the date of delivery in compliance with the statute. B. McMillen’s Kansas Consumer Protection Act Claim s McMillen also claims Drive Financial is liable for unconscionable and deceptive acts and practices pursuant to the Kansas Consumer Protection Act. Specifically, McMillen alleges Drive Financial’s de mand for, and acceptance of, payments pursuant to a void and unenforceable RIC w as unconscionable and deceptive. McMillen’s Kansas Consumer Protection A ct claims, however, are contingent on her ability to establish that the RIC was void because it violated Kan. Stat. Ann. § 8-135(c)(7). Because there was n o violation of Kan. Stat. Ann. § 8-135(c)(7), the district court’s grant of summary judgment to Drive Financial on McMillen’s Kansas Consumer Protection Act claims was proper. IV. Conclusion-8-

For the foregoing reasons, this court AFFIRMS the district court’s grant of summary judgment to Drive Financial. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge