Heward v. Thahab

Duane Bryan Heward and Alysia Dawn Heward, Plaintiffs, v. Ahmed Thahab, Defendant.

No. CV-19-05155-PHX-DJH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 13, 2021

ORDER

Plaintiffs Bryan and Alysia Heward ("Plaintiffs") responded to Ahmed Thahab's ("Defendant") ad for a 2014 Chrysler Town & Country Mini Van ("the Van"). Plaintiffs paid the Defendant $7,500 for the Van. Plaintiffs allege that Defendant misrepresented the actual mileage of the Van in advertising and selling the Van to Plaintiffs resulting in their financial losses. Plaintiffs filed a Complaint alleging that Defendant violated the Federal Odometer Act (49 U.S.C. § 32701 et seq.) and the Arizona Consumer Fraud Act (A.R.S. § 44-1521 et seq.), and seeking damages for their resulting financial losses. (Doc. 1). Plaintiffs also allege that the Defendant acted with the intent to defraud when he altered the Van's odometer and provided them with a false odometer disclosure. (Id. at ¶¶ 47, 48). The parties proceeded to a bench trial on April 12, 2021. The Court now issues its ruling.¹

I. FINDINGS OF FACT

1. On February 5, 2019, a Certificate of Title was issued for the Van in the name ofKevin Hooper of Dryden, Michigan noting 206,216 odometer miles. [Exh. 10];²

2. On February 27, 2019, the Defendant purchased the Van in Michigan for $2,000. [UT³ at 8-10; Exh. 10];

3. A Title Assignment was issued by Kevin Hooper as Seller to Ahmed Thahab as Buyer. [UT at 8-10 ; Exh.10];

4. The Title Assignment notes the Van's mileage at 206,600. (Doc. 27-1) [UT at 10; Exh. 10];

5. The Defendant drove the Van from Michigan to Phoenix, Arizona, where he resides. [UT at 11];

6. The Defendant testified that he needed to rely on his Global Positioning System while driving the Van because the odometer did not work. [UT at 11-12];

7. The Defendant took the Van to a mechanic to have the odometer fixed, which reduced the odometer reading from 206,600 miles to 67,000 miles. [UT at 12];

8. On March 13, 2019, the Defendant signed an Arizona Motor Vehicle Division ("MVD") Title and Registration Application listing himself as the Van's owner and the Van's "actual" odometer reading as "206,600." (Doc. 27-1); [UT at 13-14; Exh. 9];

9. On March 13, 2019, the Defendant received an Arizona Department of Transportation Certificate of Title, which notes the Van's odometer reading as 206,600 and a notation "A." [UT at 14; Exh. 7];

10.On page 2 of the Transportation Certificate of Title, the Defendant wrote the Van had an odometer reading of 67,000, and he inserted an "X" next to "Not Actual Mileage Warning Odometer Discrepancy" and signed it. (Doc. 27-1); [UT 14-15; Exh. 7];

11.On April 5, 2019, the Defendant completed another Arizona MVD Title and Registration Application for the Van. [UT at 16-17; Exh. 6];

12.The Defendant's application notes an odometer reading of 67,000 and box "C' ischecked. [UT at 16-17; Exh. 6];

13.The Defendant received an Arizona Certificate of Title on April 3, 2019, which he signed and had notarized on that same day, which is something he testified that he always does. [UT at 18; Exh. 4];

14.The Defendant left the odometer reading blank. [UT at 26; Exh. 4];

15.The Defendant acknowledged that the Certificate of Title requires the Seller to "state the vehicle mileage upon transfer of ownership." [UT at 28-29; Exh. 4];

16.The Defendant stated he was not sure of the Van's actual mileage and testified that the person he bought it from was also unsure of the actual mileage. [UT 19-20, 30];

17.The Defendant acknowledged that the mileage on a 2014 Van is a major factor in determining its value. [UT at 32];

18.The Defendant acknowledged that he would not pay the same price for a van with 206,000 as he would for one with 67,000 miles. [UT at 34]

19.The Defendant used the Van while employed as an Uber driver. [UT at 17];

20.Sometime in April, the Defendant decided to sell the Van, so he offered it for sale at over $8,000 on Craigslist. [UT at 18-21, 41; Exh. 13];

21.On June 17, 2019, Plaintiffs responded to the Craigslist advertisement by text message asking the Defendant about the Van's mileage to which the Defendant responded "75,000." [UT at 21, 41; Exh. 13];

22.The Defendant also represented to Plaintiffs that the Van had only 80,000 miles.⁴ (Doc. 27-1);

23.In response to Plaintiff's⁵ text message, the Defendant asked if Plaintiff was a dealership. [UT at 23; Exhs. 13 and 22];

24.Plaintiff also asked if the Defendant "flipped cars," to which the Defendant responded, "It's my dad's car and he want me to sell it for him." [UT at 25; Exh.13];

25.Plaintiff met with Defendant to see and to test drive the Van. While driving the Van,they had to stop to add antifreeze because the Van was overheating. [UT at 42];

26.Plaintiff and Defendant drove the Van to a mechanic to enable Plaintiff to inspect its undercarriage, however, he was unable to fit underneath it, so he asked Defendant to take a picture of the undercarriage with his cell phone. [UT at 44];

27.On June 25, 2019, Plaintiff accompanied the Defendant to the MVD and asked that a Title search be conducted to ensure the Defendant actually owned the Van, which the MVD confirmed. [UT at 44 - 45]

28.The Defendant and Plaintiff then drove to Chase Bank where Plaintiff gave Defendant a cashier's check in the amount of $7,500, and Defendant gave Plaintiff the Title and one key fob. (Doc. 27-1); [UT at 44-45];

29.After Plaintiff received the Title from the Defendant, he completed it by writing in his and his wife's name. [UT at 46; Exh. 4];

30.Plaintiff returned home where he planned to register the Van with the Holbrook MVD. [UT at 46-47];

31.A Holbrook MVD employee informed Plaintiff that his researched showed that the Van had over 200,000 odometer miles on it. [UT at 47];

32.The MVD employee provided Plaintiff with a "Statement of Error" form instructing him to have the Defendant complete and notarize the form to enable the MVD to reinstate the Van's true mileage. [UT at 47-49; Exh. 14];

33.Plaintiff filled in the form as much as he could, including inserting "C" under "Odometer Box Entered in Error," and "A" under "Correct Mileage." [UT at 47-49; Exh. 14];

34.Plaintiff texted a picture of the Statement of Error form to the Defendant explaining that the MVD told him that the Van has over 200,000 miles on it. [UT at 51];

35.Plaintiff understood that Defendant's father purchased the Van, so he asked Defendant to have his father complete the form with the correct mileage stating "whoever sold the car to your dad in Michigan accidently put on the title 206,000. So your dad did the same when he came to Arizona. Then when you and your dadput the title in your name with the correct mileage, they put Box C. They marked C on my title because your title had C too. I need box A." [UT at 49, 51; Exh. 13];

36.Defendant responded: "What you mean over 200,000 I don't understand" and "I will ask my dad what's going on with the car." [UT at 31, 51-52; Exh. 13];

37.Plaintiff asked the Defendant to call him back, but the Defendant never did. [UT at 31-32, 52];

38.When Plaintiff attempted to reach the Defendant, he learned that Defendant had blocked his calls. [UT at 32, 52];

39.Plaintiff viewed a CarFax report that indicated the Van had 173,658 miles on May 3, 2018, and 200,929 miles on December 18, 2018. [UT at 53];

40.Plaintiff testified that he would never purchase a vehicle knowing that the odometer had been altered or rolled back. [UT at 37];

41.Plaintiff testified that over his lifetime, he has purchased approximately 12 used vehicles and he has never purchased one with over 100,000 miles. [UT at 38];

42.While driving the Van home to Holbrook, the air conditioner began to blow hot air. [UT at 55-56];

43.Plaintiff paid $580.00 to Wilkinson Auto Shop for labor to repair the air conditioning unit, and $331.09 for a hose line as part of that repair. [UT at 56-59; Exh. 16, 20];

44.Having never received the second key fob from Defendant, Plaintiffs purchased one for $20.77 and paid $100.00 to have the fob programmed. [UT at 55-56; Exhs. 18, 19];

45.Plaintiffs paid $204.72 to Title the Van. [UT at 55-56; Exh. 3];

46.Plaintiffs registered the Van and paid $221.53 for one year. [UT at 59; Exh. 17];

47.Plaintiff testified that, given what he learned about the Van after purchasing it, he would not have paid $1,000 for it. [UT at 60-61];

48.Plaintiff further testified that had he known that the Van had over 200,000 miles on it he would not have responded to the Defendant's ad. [UT at 61];49.Plaintiff testified that the Defendant never informed him that he replaced the Van's odometer. [UT at 62].

II. CONCLUSIONS OF LAW

Title 49 U.S.C. § 32710 provides that a person may bring a civil action to enforce a claimed violation of the federal Motor Vehicle Information and Cost Savings Act ("the Odometer Act"). The Act's intent is to "prohibit tampering with motor vehicle odometers; and to provide safeguards to protect purchasers in the sale of motor vehicles with altered or reset odometers."⁶ 49 U.S.C. § 32701(b). Among the prohibited acts are that a person may not disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer. 49 U.S.C. § 32703(2). It also forbids advertising for sale, selling, using, installing, or having installed "a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer." Id.

Moreover, a person transferring ownership of a motor vehicle shall give the transferee⁷ specific written disclosure. The written disclosure must be signed by the transferor and transferee, and among other statements must include "(1) the odometer reading at the time of transfer. . ." and "the transferor's certification that 'to the best of his knowledge the odometer reading reflects the actual mileage; (2) the odometer reading reflects the amount of...