UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
February 24, 1983;
ABRAHAM S. KRAMER, Plaintiff,
MARINE MIDLAND BANK and TOYOTA OF ROCKLAND, INC., Defendants
The opinion of the court was delivered by: KNAPP
MEMORANDUM & ORDER
WHITMAN KNAPP, D.J.
The case is before us on cross-motions for summary judgment. On August 3, 1979 plaintiff bought an automobile from Toyota of Rockland, Inc. (the dealer). The transaction contemplated a partial down-payment of about $2,100, the balance of the price -- about $2,800 -- to be financed by Marine Midland Bank (the bank) in 48 equal monthly instalments. It is undisputed that the bank maintained a business relationship with the dealer. Pursuant to this relationship the bank regularly financed the dealer's sales, provided the dealer with forms, approved the creditworthiness of each borrower, and was immediately assigned the sales contract entered into between the customer and the dealer. The Retail Instalment Contract form supplied by the bank
contains an indication -- evidenced by plaintiff's additional signature in the appropriate box -- that plaintiff purchased credit life insurance, the premiums on which insurance were advanced by the bank and included in the total amount financed. Plaintiff contends, however, that such insurance was foisted upon him by the prevarication of the dealer who is alleged to have given a "vague answer to the effect that that was the way the [bank's] form was set up" in response to plaintiff's question why two separate signatures were required.
On October 22, 1979 -- after the instalments of September 3 and October 3 had been paid
-- plaintiff was ready to pay off the balance due on the loan. He inquired from the bank what was the outstanding balance and then paid the amount he was told to be due. A few weeks later, however, he received in the mail a $30.22 refund because -- so the bank advised him -- the amount due at the time of prepayment had been overstated.
This small refund piqued plaintiff's curiosity as to precisely how the correct amount due had been calculated. He was advised at the bank to write for information, but plaintiff elected initially to pursue his inquiries by telephone. Such efforts, however, proved unsuccessful. In December of 1979 he finally made a written request for information.
In response, the bank confirmed that the loan had been fully paid off, advised him that a refund on unearned credit life insurance might be due, but failed otherwise to respond as completely as plaintiff wished. Plaintiff appears to have been particularly irked by the bank's perceived parsimoniousness in providing the desired information combined with its suggestion that he apply to the dealer for a refund on unearned credit life insurance premiums. Later inquiries by an attorney also failed to produce a response which measured up to plaintiff's expectations. Finally, plaintiff brought this action charging the bank
with at least ten different violations of the Truth-in-Lending Act [TILA], 15 U.S.C. § 1601 et seq., and the regulations promulgated thereunder, Regulation Z [Reg. Z], 12 C.F.R. 226.1 (1982) et seq., reprinted in 15 U.S.C.A. fol. § 1700, and with several violations of various New York consumer protection laws.
THE TRUTH-IN-LENDING CLAIMS
The instalment contract includes the following clause on its front page:
4. PREPAYMENT OF CONTRACT. If I pay this contract in full before the final due date, what I owe you will be reduced by the amounts of the Finance Charge and insurance charge which have not yet been earned, figured by the RULE OF 78'S. (That is a method authorized by law for figuring earned charges and refunds.) You may deduct a fee of $15 from the Finance Charge before figuring the unearned portion. You don't need to give me any Finance Charge credit or insurance charge credit which amounts to less than $1. (Emphasis added).
Plaintiff argues that this statement is in violation of TILA because "the payoff balance [was] not reduced by the amount of unearned [insurance] charges, but in fact Marine Midland relegated the consumer to his own devices to seek out and attempt to obtain the insurance rebate from other sources." Plaintiff's Supplemental Brief at 16a-17 (emphasis in original). See also Plaintiff's Supplemental Memorandum at 30. This factual contention is undisputed. See Affidavit of F. G. Cologgi para. 6. The bank responds on two fronts. First, it claims that the quoted paragraph complies with Reg. Z 226.8(b)(7) which only requires "identification of the method of computing any unearned portion of the finance charge in the event of prepayment . . ."
Second it claims that it has no obligation -- under federal or state law -- to rebate any portion of the unearned insurance charges. See Defendant's Memorandum at 13; Defendant's Reply Memorandum at 10.
We hold that a violation of Reg. Z 226.6(a)
and Reg. Z 226.6(c)
has been established. The quoted paragraph cannot fairly be understood in any other way but to state that the buyer is not required -- in the event he were to prepay his debt -- to pay the bank an amount which includes the unearned insurance charges. As, in fact, the bank's practice is not to credit unearned insurance charges, the quoted paragraph can hardly be said to constitute a "clear" disclosure under Reg. Z 226.6(a), or one that is not "misleading" or "confusing" under 226.6(c). Cf. Wright v. Tower Loan of Mississippi, Inc. (5th Cir. 1982) 679 F.2d 436, 444 (statement that borrower subject to non-existent charges held to be misleading; burden on creditor to prove that additional information is not misleading); Smith v. Chapman (5th Cir. 1980) 614 F.2d 968, 977 (statement that a sum includes a particular item when it is not so included held to be misleading); Weaver v. General Finance Corp. (5th Cir. 1976) 528 F.2d 589, 590 (statement that premiums for voluntary insurance would be "deducted" from the amount financed, when, in fact, they were part of the total amount borrowed, held to be misleading).
The bank's arguments entirely miss the mark. It is altogether irrelevant whether the quoted paragraph complies with another provision of Reg. Z or whether the bank is or is not under an obligation to rebate or credit unearned life insurance premiums.
On the assumption that the bank is under no such obligation, a TILA violation nonetheless stems from the bank's misleading suggestion that it would so credit the buyer's account upon prepayment. We do not hold that the bank must rebate or credit unearned premiums, but only that it may not claim that it will do so when that is not, in fact, its practice.
We are mindful, of course, that TILA should not be used as an "instrument of harassment and oppression of the lending industry." Bates v. Provident Consumer Discount Co. (E.D.Pa. 1979) 493 F. Supp. 605, 607 (quoting Sharp v. Ford Motor Credit Co. (S.D.Ill. 1978) 452 F. Supp. 465, 468) aff'd (3d Cir. 1980) 631 F.2d 725. We are not concerned, however, with a violation of one of TILA's many minute technical requirements, with which -- except in truly de minimus cases -- strict compliance is demanded. Reneau v. Mossy Motors (5th Cir. 1980) 622 F.2d 192, 195 (citing cases). We are concerned here with a determination whether a particular disclosure is clear or confusing. In that exercise we must be guided by what is probable and reasonable, Williams v. Western Pacific Financial Corp. (5th Cir. 1981) 643 F.2d 331, 339, and -- more generally -- by TILA's purpose to promote the informed use of credit, Anderson Bros. Ford v. Valencia (1981) 452 U.S. 205, 219-20, 68 L. Ed. 2d 783, 101 S. Ct. 2266, and to deter lenders from making misleading disclosures. Williams v. Public Finance Corp. (5th Cir. 1979) 598 F.2d 349, 355. Plaintiff's submissions, see, e.g., Plaintiff's Supplemental Brief at 4 n.2, suggest that he was driven to sue primarily by his chagrin for being treated in what he perceived to be a cavalier fashion in connection with the rebates of unearned credit life insurance, rather than by an ambition to seek redress for the many alleged technical violations with which he charges the defendant. To the extent that plaintiff's perception of having been treated unfairly was caused by the above quoted paragraph, we cannot but agree with him that it would most reasonably be understood as promising him a reduction in his indebtedness which the bank was not prepared to vouchsafe. Particularly in light of the mandate that we interpret TILA liberally, James v. Ford Motor Credit Co. (10th Cir. 1980) 638 F.2d 147, 149, in the consumer's favor, Davis v. Werne (5th Cir. 1982) 673 F.2d 866, 869 (citing cases), we are compelled to find that the quoted paragraph is unclear and misleading and, therefore, violates the strictures of TILA.
In connection with the above-quoted paragraph, plaintiff also charges the bank with a TILA violation because of its practice to compute prepayment rebates "by a method which, while based upon the Rule of 78's tables, deviated from their prescribed manner of application in a way which penalized the consumer and benefited Marine Midland." Plaintiff's Supplemental Brief at 16a. See also Plaintiff's Memorandum at 30-31; Complaint para. 12(d).
The Rule of 78's -- also known as the sum-of-digits method -- is a procedure to compute rebates due on unearned charges when a loan is paid off before maturity. See, e.g., J. G. Donaldson, Retail Instalment Sales Legislation, 19 Rocky Mountain L. Rev. 135, 152 (1947); Comment, Consumer Protection: Truth-in-Lending Disclosure of the Rule of 78's, 59 Iowa L. Rev. 164 (1973); Comment, Rule of 78's and the Required Disclosures Under Regulation Z, 23 Kan.L.Rev. 709 (1975). Suppose that a loan is to be repaid in monthly instalments. Under the Rule, each month of the loan's term is assigned a number (digit), which -- for the first month -- is equal to the total number of months (payment periods) over which the loan is to be repaid. Each successive month is assigned a number one less than the previous month. Accordingly, the number assigned to the last month is always 1. For a twelve month loan, the sum of the digits is 78 (12 11 10 . . . 1 = 78). The sum of the digits varies, of course, with the number of agreed upon instalments: for a 3-instalment loan, for instance, the sum is 6, for a 6-instalment loan it is 21, and for a 24-instalment loan it is 300. See Bone v. Hibernia Bank (9th Cir. 1974) 493 F.2d 135, 136-37 (citing sources). The proportion of prepaid charges to be rebated is a ratio (percentage factor), the denominator of which is the loan's sum of digits and the numerator of which is a sum -- smaller than the denominator -- which excludes the digits assigned to the months during which the loan had remained outstanding.
This claim turns on a dispute as to precisely how many months should have been excluded from the computation of the numerator.
Plaintiff argues that on October 22 -- when the loan was prepaid -- it had been outstanding for only two complete months, and consequently, that only the digits of the first two months should have been excluded from the computation of the numerator. This yields a rebate ratio of 91.92 percent of prepaid charges, rather than the 88.01 percent used by the bank.
Plaintiff's method -- he claims -- is the only correct way to apply the Rule of 78's. A different computation is a "bank-favoring misuse of the Rule of 78's", Plaintiff's Memorandum at 31, and thus a violation of TILA. In response, the bank states that it is licit to use a "version" of the Rule of 78's method which excludes from the calculation of the numerator of the rebate ratio all the months during which the loan was outstanding, including the one that has not fully run at the time of prepayment. See Affidavit of F. G. Cologgi paras. 3-5. As the loan was prepaid on October 22, the bank's method calls for the exclusion (from the sum of digits in the numerator of the rebate ratio) of three instalments -- the two which plaintiff concedes plus the third instalment that would have been due November 3. This, of course, yields a rebate ratio of 88.01 percent of prepaid charges, and consequently, a rebate approximately $31 smaller than had the method advocated by plaintiff been used.
The germane facts are not in dispute.
We note, at the outset, that the legal question before us is not whether -- under federal law -- the bank is entitled to calculate the rebate with the method it used. In fact, TILA contemplates the possibility that a creditor will rebate no unearned charges upon prepayment. See Reg. Z 226.8(b)(7).
TILA "does not require the lender to use any particular method of computing unearned finance charges; rather, the statute is aimed solely at assuring that the method ultimately used by the lender is disclosed to the consumer." Gantt v. Commonwealth Loan Co. (8th Cir. 1978) 573 F.2d 520, 526. The issue is whether, having chosen this particular method of calculating unearned charges, the bank was entitled under TILA to refer to it as the "Rule of 78's."
The parties' meagre efforts notwithstanding,
we are not entirely without guidance on this matter. The Fifth Circuit recently rejected precisely the claim before us. Gallois v. Commercial Securities Co. (5th Cir. 1981) 661 F.2d 901, 904. The Court noted that the problem arises from there being "no single 'Rule of 78'." Id. n.3. However, it pointed out that the drafts of another "one month after" provision -- the method of computation in the Uniform Consumer Credit Code (UCCC), see UCCC (1968 act) § 2.210(3), 7 U.L.A. 326 (1978)
-- had been referred to by the Federal Reserve Board as "present[ing] the 'Rule of 78's.'" F.R.B. Official Staff Interpretation No. FC-0044, 41 Fed.Reg. 9385, February 4, 1977, reprinted in 12 C.F.R. at 719-20 (1982). Furthermore, in later versions of the UCCC its drafters specifically referred to a method that is consistent with the bank's approach as "permit[ting] . . . the 'Rule of 78 method' of calculating the unearned portion of the finance charge . . ." UCCC (1974 Act) § 2.510 comment 5, 7 U.L.A. 693 (1978)
The foregoing demonstrates that methods which, as to timing, are consistent with the bank's approach, have been termed a "Rule of 78's" at least by one Court of Appeals, by the drafters of the UCCC, and by the Federal Reserve Board. Accordingly, we join the Gallois court in holding that what it called the "one month after" method, Gallois, supra, 661 F.2d at 904 n.3, can properly be referred to as a "Rule of 78's."
There being, of course, no dispute that reference to a "Rule of 78's" is sufficient to satisfy the identification requirements imposed by Reg. Z 226.8(b)(7), see Gallois, supra, 661 F.2d at 904; Gantt v. Commonwealth Loan Co., supra, 573 F.2d at 525-26 (citing cases); Reg. Z 228.818(c), we conclude that defendant's identification of its method of calculating prepayment rebates is not in violation of TILA.
The quoted paragraph is also the bone of contention in another claim, namely, that the bank violated Reg. Z 226.6(a)
by failing to set out the term "finance charge" more conspicuously than its surrounding language. Plaintiff's Memorandum at 29-30; Plaintiff's Supplemental Brief at 16; Complaint para. 12(b).
Regulation Z 226.6(a) requires the term "finance charge" to be printed "more conspicuously than other terminology", but only where the term is "required to be used." Thus, the simple legal question before us is whether -- in the quoted paragraph -- the term "finance charge" is "REQUIRED TO BE USED" within the meaning of Reg. Z 226.6(a). We answer that question in the negative and, accordingly, find that the bank need not have set out the term "finance charge" more conspicuously.
In dealing with this very question the Federal Reserve Board -- whose rules and interpretations are generally binding, Ford Motor Credit v. Milhollin (1980) 444 U.S. 555, 565-70, 63 L. Ed. 2d 22, 100 S. Ct. 790 -- observed that "the use of the term 'finance charge' with respect to credit other than open end is required only pursuant to the credit sale provision of [Reg. Z] 226.8(c)(8)(i) and [the equivalent section in the loan and other nonsale credit section]." F.R.B. Official Staff Interpretation No. FC-0052, 42 Fed.Reg. 16130, March 25, 1977, reprinted in, 12 C.F.R. at 725-26 (1982) (emphasis added). Regulation Z 226.8(c)(8)(i)
requires the disclosure of the finance charge and specifically mandates the use of the term "finance charge." The object of TILA is to foster the full and accurate disclosure of the cost and the terms of credit. The numerical values of the "finance charge" and of the "annual percentage rate" are, respectively, the essential summary of the cost and the terms of a credit. Therefore, Regulation Z seeks to draw the borrower's attention particularly to those two items only where their amounts are set out in the disclosure document. Accordingly, pursuant to § 226.8(c)(8)(i), a disclosure document shows -- as does the bank's in item 8 on the right side -- a conspicuously printed caption which reads "FINANCE CHARGE" accompanied by a number. Only in that connection is the term finance charge "required to be used."
It follows that in the quoted paragraph the bank has used the term "finance charge" because it is convenient, not because it is "required." See also revised Reg. Z 226.17(a)(2), reprinted in 12 C.F.R. at 955 (1982) (explicitly including the substance of Official Staff Interpretation No. FC-0052, supra, in the revised disclosure regulations for closed-end credit); Revised Reg. Z 226.5(a)(2), reprinted in 12 C.F.R. at 920 (1982) (conspicuousness requirement for open-end credit). In that paragraph, therefore, the bank need not have set out the term "finance charge" more conspicuously than its surrounding language.
Accord Jones v. The Goodyear Tire & Rubber Co. (E.D.La. 1978) 442 F. Supp. 1157, 1162 n.2; Owens v. Magee Finance Service of Bogalusa, Inc. (E.D.La. 1979) 476 F. Supp. 758, 765-66. We accordingly find this claim to be without merit.
Plaintiff also charges the bank with failing to include the premiums for credit life insurance as part of the transaction's finance charge. Complaint para. 12(f); Plaintiff's Memorandum at 17-27; Plaintiff's Supplemental Brief at 12-13. The argument is simple: 15 U.S.C. § 1638(a)(6)
and Reg. Z 226.8(c)(8)(i)
to disclose the finance charge and it, in turn, is defined to include premiums for credit life insurance. See 15 U.S.C. § 1605(b); Reg. Z 226.4(a)(5).
As the bank failed to include the $64.76 in premiums for credit life insurance in the finance charge, plaintiff argues that a TILA violation is established. Defendant submits that the relevant statute and regulation allow premiums for credit life insurance to be excluded if three conditions are met: (a) coverage is not a factor in the approval of credit, (b) the borrower separately signs a writing -- after having been given written information of the cost of such insurance -- stating that he wants credit life insurance, and (c) the signed writing is specifically dated.
Plaintiff contends, however, that there exists a material issue of fact as to whether coverage was a factor in the approval of credit and points out, furthermore, that it is clear from the face of the document that the relevant section is not separately dated. See, e.g., Plaintiff's Supplemental Brief at 12-13, n.4.
The bank rejoins with two main contentions. First, that -- whatever the deficiency of the instalment contract -- plaintiff was promptly "sent a correction notice specifying, inter alia, the date of the missing insurance authorization." Defendant's Reply Memorandum at 3. See also Affidavit of Elwood G. Becker, Jr. This, the bank argues, affords it a complete defense under 15 U.S.C. § 1640(b).
Second, the bank states that, in any event, it is not liable for any alleged failures of disclosure in connection with the sale of credit life insurance because such insurance was sold by the dealer, not the bank. It follows, the bank contends, that under Reg. Z 226.6(d)
it is exempt from liability because such disclosures are neither "within [its] knowledge" nor within "the purview of [its] relationship with the customer." Plaintiff's Reply Memorandum at 4. In light of our holding below, we need not rule on the bank's contentions under Reg. Z 226.6(d).
It is clear that there exists a dispute of material fact concerning the correction notice. Plaintiff states that he certainly never received it and that it was probably never sent. Plaintiff's Reply Brief (Supplemental) at 20-24. Accordingly, the bank's defense under 15 U.S.C. § 1640(b) is not ripe for adjudication in a motion for summary judgment. See 6 Moore's Federal Practice P 56.23. For altogether different reasons, however, we believe that the prerequisites for the exclusion of the insurance premiums from the finance charge have been satisfied.
The first prerequisite -- that the authorization be separately signed -- is clearly satisfied on the face of the instalment contract. Second, contrary to plaintiff's argument, his submissions do not raise a material issue of fact as to the next prerequisite -- whether coverage was or was not a factor in the approval of credit. Plaintiff intimates that he was hornswoggled by the dealer into signing the insurance request. See Affidavit of Plaintiff attached to Plaintiff's 3(g) Statement paras. 3-5. Therefore -- it is argued -- we may not determine on summary judgment whether credit life insurance was truly voluntary because the bank may have known about such dealer practices or, indeed, even conspired with the dealer to foist unwanted insurance on unsuspecting customers. See Plaintiff's Supplemental Brief at 12, n.4. Plausible or implausible as this argument may be, it turns on plaintiff's evidence that he really did not want the insurance. All we have on this score is plaintiff's bland assertion. See Affidavit of Plaintiff attached to Plaintiff's 3(g) Statement para. 3. Nonetheless, he signed -- ostensibly because of some "vague answer [from the dealer] to the effect that this is the way the [bank's] form was set up, or that it was just part of the form", Id. P 5 -- a document which, in crystal-clear terms, states, "I want life insurance . . .". A literate plaintiff, who presents no real evidence of fraud or duress, may not be allowed in such circumstances to complain that he did not, in fact, want insurance. In an altogether similar situation the Fifth Circuit stated:
Although plaintiff asserts that she never requested or desired insurance coverage, but merely signed the documents when told to do so, this assertion is insufficient to vary the terms of the [written] contract or to negate the creditor's full compliance with the disclosure requirements of Regulation Z. The defendant correctly contends that, absent a claim of illiteracy, fraud or duress, no extraneous oral evidence can be presented by the plaintiff to prove that the defendant gave her the impression that the insurance was required. . . . Consumers should not be encouraged to avoid reading or to ignore the information the Act requires to be provided. Anthony v. Community Loan & Investment Corp. (5th Cir. 1977) 559 F.2d 1363, 1369-70.
Accordingly, we join the Anthony Court in applying the state parol evidence rule -- which prohibits the introduction of prior or contemporaneous evidence to contradict the express terms of an agreement, see Barclays Bank of New York v. Goldman (S.D.N.Y. 1981) 517 F. Supp. 403, 411-12 (citing cases) -- to bar the introduction of such evidence as plaintiff here seeks to submit in support of his contention that the credit life insurance was inflicted upon him against his will. Accord Williams v. Blazer Financial Services, Inc. (5th Cir. 1979) 598 F.2d 1371, 1374; Uslife v. Federal Trade Commission (5th Cir. 1979) 599 F.2d 1387.
We are left, then, with the unsatisfied condition that the request for insurance be specifically dated. Reg. Z § 226.4(5)(ii). We find this lacuna to have been a de minimus violation. See Dixey v. Idaho First National Bank (9th Cir. 1982) 677 F.2d 749, 752-53 (collecting and discussing cases). In light of the widely-accepted requirement of strict compliance with TILA's technical rules, Reneau v. Mossy Motors, supra, 622 F.2d at 195, we would have been disinclined to make such a ruling but for the fact that the Federal Reserve Board -- whose rules and interpretations are generally to be regarded as dispositive, see 15 U.S.C. §§ 1604, 1640(f); Anderson Bros. Ford v. Valencia, supra, 452 U.S. at 219; Ford Motor Credit Co. v. Milhollin, supra, 444 U.S. at 565-570 -- has given us, at least by implication, further guidance on the precise issue before us. The revised Regulation Z which describes the disclosures that are necessary to exclude credit life insurance premiums from finance charges, does not include the requirement that the insurance request be "specific[ally] date[d]."
The Federal Reserve Board has thus brought its own rules into conformity with the relevant statutory mandate, 15 U.S.C. § 1605(b),
which mandate never included a requirement of dating.
The change is, furthermore, not at all inconsistent with TILA's established purpose to promote the "informed use of credit" by assuring "a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him . . ." 15 U.S.C. § 1601(a) (emphasis added) (declaration of purpose). See also Anderson Bros. Ford v. Valencia, supra, 452 U.S. at 219-20 (citing cases). Dating adds not an iota of "meaningful" information about "credit terms" to that which is already brought to the consumer's attention by the requirement that he separately sign the insurance request. The Federal Reserve Board's elimination of this superfluous technical requirement is also entirely consistent with the purpose of the recent amendments to TILA, see TILA Simplification and Reform Act of 1980, Pub.L.No. 96-221, 94 Stat. 132 (1980), enacted to simplify the information provided to consumers and to limit creditor civil liability to significant violations, see S.Rep.No. 368, 96th Cong., 2d Sess. 17, reprinted in  U.S. Code Cong. & Ad. News 236, 252. Cf. also Kessler v. Associates Financial Services Co. (9th Cir. 1977) 573 F.2d 577, 578 (TILA and Reg. Z are often no more than "traps for even wary lenders").
In light of the foregoing we find the lack of dating on the insurance request to be a de minimus violation, Cf. Anderson Bros. Ford v. Valencia, supra, 452 U.S. at 213 (retroactive guidance from Federal Reserve Board Interpretation and TILA amendments), and, therefore, that the premiums for credit life insurance were properly excluded from the transaction's finance charge. But see, e.g., Wright v. Tower Loan of Mississippi, Inc., supra, 679 F.2d at 446 (citing cases).
Plaintiff also charges the bank with having improperly excluded from the computation of finance charges a $10 premium on the Vendor's Single Interest (VSI) Insurance.
Complaint para. 12(g); Plaintiff's Memorandum at 27-28; Plaintiff's Supplemental Brief at 14-15.
The argument is similar to that made in connection with the claim that premiums for credit life insurance had improperly been excluded from the computation of the finance charge. It here argues that TILA and Regulation Z require the "finance charge" to be disclosed, 15 U.S.C. § 1638(a)(6); Reg. Z 226.8(c)(8)(i),
and it, in turn, is defined as including premiums for VSI insurance, 15 U.S.C. § 1605(c);
Reg. Z 226.4(a)(6).
The dispute turns, again, on whether the defendant has met the disclosure requirements which allow it to exclude the VSI insurance premiums from the computation of the finance charge. The requirements for such exclusion are summarized in Reg. Z 226.404(b) which states:
If the insurer waives all right of subrogation against the customer in a single interest policy of insurance . . . and the creditor complies with the requirements of [Reg. Z] 226.4(a)(6), charges or premiums for such insurance may be excluded from the amount of the finance charge . . .
Accordingly, the combined requirements of Reg. Z 226.4(a)(6) and Reg. Z 226.404(b) that must be satisfied for the VSI insurance premiums to be excluded from the computation of the finance charge are: (a) that the insurer waive its right of subrogation against the customer; (b) that the customer receive a written statement of the cost of VSI insurance obtained through the creditor; (c) that the written statement indicate that the customer may choose through whom to obtain such insurance. See also F.R.B. Official Staff Interpretation No. FC-0008, 41 Fed.Reg. 47410, October 29, 1976, reprinted in 12 C.F.R. at 695-96 (no need to itemize cost of VSI insurance components).
It is undisputed that the insurance carrier has "waived its right of subrogation against the customer with respect to any payment made under the [VSI insurance] policy." Exhibit A to Defendant's Notice of Motion. From the face of the instalment contract it is clear, furthermore, that the cost -- $10.00 -- of VSI insurance is stated and that the insurance notation is captioned: ". . . I MAY CHOOSE THE PERSON THROUGH WHOM THE INSURANCE IS TO BE OBTAINED."
Although it would thus appear that all the requirements for exclusion have been satisfied, plaintiff nonetheless claims that the "spirit" of TILA has been violated by the manner in which defendant disclosed the cost of VSI insurance. The contention boils down to this: defendant should not have stated
but should rather, have said
"Premium (if obtained through creditor) $10.00"
because the version actually used suggests that $10.00 is the "absolute and invariable" cost of VSI insurance, never mind its source. Thus, it is implied that the oversized disclaimer about being able to choose where to obtain insurance is somehow eviscerated.
The argument is close to frivolous. Apart from its lack of substantive merit, it implies that a creditor -- although he might have strictly complied with each specific technical disclosure requirement -- should be held liable for failing to use a defendant's "new and improved" version of the disclosure document. Absent a showing that a disclosure statement is "confusing" or "misleading", lack of perfection is not a predicate for liability. Defendant has complied with the requirements of the statute. Therefore, plaintiff may not establish liability merely by arguing that the clarity of the disclosure could be improved. Sanders v. Auto Associates, Inc. (D.S.C. 1978) 450 F. Supp. 900, 904.
Accordingly, we hold that the VSI insurance premium was properly excluded from the calculation of the finance charge.
In connection with the VSI insurance, plaintiff also charges that the bank should be held liable for having set out the $10.00 premium on the line labeled "miscellaneous" rather than on the very next one labeled "physical damage insurance" -- both subdivisions of the general heading "other charges." This, plaintiff claims, constitutes a breach of the requirement of Reg. Z 226.6(a) that disclosures generally "be made clearly, conspicuously, [and] in meaningful sequence . . ." We hold that plaintiff has failed to establish the charged violation.
The plaintiff argues that the bank violated a general mandate that disclosures be clear and not misleading. As we stated in connection with claim #I, to determine whether such general mandate has been breached we must look at what is probable and reasonable, Williams v. Western Pacific Financial Corp., supra, 643 F.2d at 339, bearing in mind TILA's purpose to facilitate comparative credit shopping and to promote the informed use of credit. Brown v. Marquette S&L Assn. (7th Cir. 1982) 686 F.2d 608, 612. We cannot find that this concededly mistaken, one-line transposition rises to the level of a violation of Reg. Z 226.6(a). We have examined all the cases on which plaintiff relies and find them unpersuasive.
They all involved significant dissimulation concerning the costs and the terms of credit, the accurate disclosure of which is TILA's central object.
Anderson Bros. Ford v. Valencia, supra, 452 U.S. at 219-20. No case cited by plaintiff -- nor the totality of all of them -- suggests that the transposition here at issue rises to the level of an "unclear" or "misleading" disclosure. We need go no further to illustrate this conclusion than to invite the reader's comparison between the paltriness of this claim and the gravity of claim #I, above.
To be sure, where the claim is that a regulation mandating the disclosure of a specific item or the use of particular terms or arrangements has been violated, then -- except in de minimus cases -- a minor deviation from the prescribed norm suffices to establish liability. Where, by contrast, reliance is placed on the general prescription that disclosures be clear and not misleading, the plaintiff must prove that it is "probable and reasonable" that the alleged disclosure defect would render such disclosure unclear or misleading. The $10.00 at issue here is the only such figure specified under "other charges" on the left side of the contract and -- although on the wrong line -- the only such figure under "other charges" in the "statement of transaction" section on the right side. In these circumstances, no reasonable jury could find that from a mere one-line transposition confusion or deception would follow.
Another claim is that the bank failed to include premiums for fire, theft, and collision insurance in the computation of the finance charge. Plaintiff's Reply Memorandum at 6-7; Plaintiff's Memorandum at 28.
The statutory support of this claim is similar to that which underlies the claim made in connection with the exclusion of premiums for credit life insurance, see claim #IV, above, and VSI insurance, see claim #V, above. Namely, that the applicable statute, 15 U.S.C. § 1638(a)(6),
and regulation, Reg. Z 226.8(c)(8)(i),
require the disclosure of the "finance charge" which, in turn, is defined to include the (allegedly omitted) premiums "for insurance written in connection with any credit transaction . . ." Reg. Z 226.4(a)(6) (emphasis added).
See also 15 U.S.C. § 1605(c).
The claim is wholly frivolous. As we understand it, plaintiff's argument is that -- had he purchased the collision, theft, and fire insurance specified in para. 11 on the reverse of the contract -- some unspecified premium should have been included in the finance charge because para. 11 does not make the disclosures necessary to exclude such premium from the finance charge. Plaintiff does not ever claim, however, that he bought any collision, theft, or fire insurance. Thus, no such insurance was "written in connection with" this credit transaction.
Accordingly, there are no applicable premiums to be included (or excluded) from the finance charge.
Cf. Griggs v. Provident Consumer Discount Co. (3d Cir. 1982) 680 F.2d 927, 931 n.4.
In connection with the same "non-purchased" fire, theft, and collision insurance, plaintiff also claims that the bank violated Reg. Z 226.8(a)(1) by failing properly to disclose on the front page of the contract its "security interest" in such insurance proceeds. Plaintiff's Memorandum at 32-33; Plaintiff's Supplemental Brief at 18-19.
We need not retrace plaintiff's tortuous argument. Suffice it to say that it turns on whether the right to receive the proceeds of such insurance constitutes a "security interest." See Reg. Z 226.8(b)(5); Reg. Z 226.2(gg). The Supreme Court has recently answered that question in the negative. Anderson Bros. Ford v. Valencia, supra, 452 U.S. 205. Even the plaintiff grudgingly concedes therefore that Valencia disposes of his argument on this claim. Plaintiff's Supplemental Brief at 4.
It is also claimed that the bank violated TILA by failing to "list the amounts taken as 'dealer fees' for obtaining registration and certificate of title." Plaintiff's Supplemental Brief at 20-21; Plaintiff's Memorandum at 13-14; Complaint para. 12(a).
From the dealer's invoice, see Exhibit C to Plaintiff's 3(g) Statement, we note that at issue are a $3.00 inspection fee and $10.00 charged as dealer fee "for obtaining Registration and/or Certificate of Title," both of which fees were included -- but not itemized -- in the $4950.00 cash price of the automobile set out in the instalment contract. These fees, plaintiff claims, should not have been "lumped in" with the cash price, but separately disclosed by the bank. We agree that they should, indeed, have been itemized but we disagree with the plaintiff as to who is responsible for the disclosure defect.
It is apparent that the disclosure document contravenes TILA in several respects. First, the unitemized inclusion of the $10.00 title fee in the "cash price" violates the command of Reg. Z 226.2(n)
that "cash price . . . shall not include any other charges of the types described in [Reg. Z] 226.4" -- i.e., title fees.
See Reg. Z 226.4(b)(4).
Second, the disclosure document is faulty because the fees were excluded from the "finance charge", which exclusion is licit only if the fees are "itemized." See Reg. Z 226.4(b)(4); Zamarippa v. Cy's Car Sales, Inc. (11th Cir. 1982) 674 F.2d 877, 878-79. Cf. Downey v. Whaley-Lamb Ford Sales, Inc. (5th Cir. 1979) 607 F.2d 1093. The failure to itemize is, alternatively, a violation of Reg. Z 226.8(c)(4) which requires that "all other charges, individually itemized, which are included in the amount financed but which are not part of the finance charge" be disclosed. Reg. Z 226.8(c)(4) (emphasis added). See also Downey v. Whaley-Lamb Ford Sales, Inc., supra, 607 F.2d 1093.
However, the question before us is this: Who is responsible -- the bank or the dealer? In light of the Supreme Court's recent decision in Ford Motor Credit Co. v. Cenance, supra, 452 U.S. 155, holding that a lender in the bank's position is a "creditor" for TILA purposes, the bank has wisely chosen in later briefs not to press its initial argument that, as a "subsequent assignee," it was protected from liability under 15 U.S.C. § 1614
because the alleged violations were not "apparent on the face of the instrument assigned . . ."
See Defendant's Memorandum at 7-8.
In this situation the bank and the dealer are both original creditors. See Ford Motor Credit Co. v. Cenance, supra, 452 U.S. 155; Reg. Z 226.2(s) (definition of "creditor"); Reg. Z 226.2(h) (definition of "arrange for extension of credit"). Accordingly, their respective disclosure responsibilities are delineated
by Reg. Z 226.6(d) which provides:
(d) Multiple creditors or lessors; joint disclosure. If there is more than one creditor . . ., each creditor . . . shall be clearly identified and shall be responsible for making only those disclosures . . . which are within his knowledge and the purview of this relationship with the customer. . . If two or more creditors . . . make a joint disclosure, each creditor . . . shall be clearly identified. The disclosures required under paragraphs (b) and (c) of [Reg. Z] § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. Otherwise disclosures shall be made as required under paragraphs (b) and (d) of [Reg. Z] § 226.8 or paragraph (b) of [Reg. Z] § 226.15. (Emphasis added.)
We join the lament of several other courts observing that "what seems clearest . . . is that the language [of Reg. Z 226.6(d)] is very unclear." Smith v. Lewis Ford, Inc. (W.D.Tenn. 1978) 456 F. Supp. 1138, 1141. No case law has been called to our attention -- and we have found none -- casting doubt on the soundness of the analysis offered by Judge Lynne in Childs v. Ford Motor Credit Co. (N.D.Ala. 1969) 470 F. Supp. 708. Among the cases which have considered the quoted regulation in an effort to divide responsibility to make disclosures among joint creditors, the Court identified two categories of decisions. First, a minority which has imposed liability on the seller -- in our case the dealer -- on the strength of the second sentence of Reg. Z 226.6(d) (". . . disclosures . . . shall be made by the seller . . .")
Manning v. Princeton Consumer Discount Co. (3d Cir. 1976) 533 F.2d 102, cert. denied 429 U.S. 865, 50 L. Ed. 2d 144, 97 S. Ct. 173. The vast majority of cases, however, have looked with disfavor on the Manning rule which automatically insulates lenders -- even those sufficiently connected with the transaction to be called "original" creditors -- whenever there is a "seller" poised between the source of funds and the buyer. See Williams v. Bill Watson Ford, Inc. (E.D.La. 1976) 423 F.Sup. 345, 355-56; Price v. Franklin Inv. Co. (D.C.Cir. 1978) 187 U.S. App. D.C. 383, 574 F.2d 594, 601-02. Accordingly, these cases have carved out the respective areas of liability based on the first sentence of Reg. Z 226.6(d) -- "knowledge" and "purview of relationship" test -- while either ignoring the second sentence, Price v. Franklin Inv. Co., supra, or interpreting it merely as a ministerial directive. Williams v. Bill Watson Ford, Inc., supra, 423 F. Supp. at 356. See also Hinkle v. Rock Springs National Bank (10th Cir. 1976) 538 F.2d 295; Cenance v. Bohn Ford, Inc. (5th Cir. 1980) 621 F.2d 130, rev'd on other grounds sub nom. Ford Motor Credit Co. v. Cenance, supra, 452 U.S. 155; Smith v. Lewis Ford, Inc., supra, 456 F. Supp. 1138; Childs v. Ford Motor Credit Co., supra, 470 F. Supp. 708; F.R.B. Official Staff Interpretation No. FC-0164, 44 Fed.Reg. 69630, December 4, 1979, reprinted in 12 C.F.R. at 823-24 (1982)
We need not speculate -- as have other courts -- on the wisdom of the Manning rule and on the meaning or interpretation of the second sentence of Reg. Z 226.6(d) because we find that there is no liability under the alternative reading of the regulation.
The "knowledge" and "purview of relationship" test is one of fact. Cenance v. Bohn Ford, Inc., supra, 621 F.2d 135. On the evidence before us no reasonable jury could find that a disclosure of a car inspection fee or a car registration fee is "within the purview" of the bank's relationship with the plaintiff, never mind whether the bank actually "knew" that the dealer charged such fees.
Cf. Childs v. Ford Motor Credit Co., supra, 470 F. Supp. at 714. The evidence before us establishes that the bank provided the dealer with forms, regularly provided credit to car buyers, and immediately took assignment of the instalment contract. These are the factors which led the Supreme Court to hold that the bank should be considered a "creditor." Ford Motor Credit Co. v. Cenance, supra, 452 U.S. 155. That -- as the Childs court observed -- is not enough to consider the bank a "seller." The bank is in the business of providing funds for the purchase of cars; there is no evidence, however, that the bank has gone into the "car-dealership" business. There is no suggestion, for instance, that the plaintiff ever would have seriously contemplated that the bank perform the inspection for which the $3.00 fee was charged. Accordingly, we find that the bank is shielded from liability for the failure to itemize the fees at issue because such fees were not "within the purview" of the bank's relationship with the plaintiff.
Plaintiff also claims that the bank violated TILA because the instalment contract contained "insufficient identification of creditor Marine Midland." Plaintiff's Memorandum at 33-35; Plaintiff's Supplemental Brief at 19-20; Complaint 12(c). Specifically he argues that the bank's address should have been set out.
This claim is also wholly without merit. Plaintiff's account suggests, to be sure, that he felt he was given a "runaround" as he attempted to establish precisely who -- within the bank's organization -- could answer questions about the transaction. In the process he was required -- so we are given to understand -- to make several phone calls until, finally, he reached the appropriate department. The discomfiture at having to navigate a bank's bureaucratic maze without a roadmap may make for a complaint to the bank about second-rate service, but it certainly doesn't make out a claim under TILA for failing adequately to identify the creditor.
Several regulations contain the requirement of identification. See, e.g., Reg. Z 226.6(d) (where there are joint creditors, each "shall be clearly identified"); Reg. Z 226.8(a) (disclosure statement shall be furnished "on which the creditor is identified"). That requirement has been the subject of much litigation, but not precisely on the issue here presented -- i.e., whether the bank's address should have been included in the disclosure statement.
Our attention has been drawn to no case which requires that a creditor disclose a specific address in order to be "clearly" identified, let alone merely "identified." Plaintiff relies primarily on Welmaker v. W.T. Grant Co. (N.D.Ga. 1972) 365 F. Supp. 531, 539-40. The case is altogether distinguishable and offers plaintiff no real support. In Welmaker the court found that the legend "Seller's Place of Business: #70" [meaning store #70], set just below the seller's printed New York City address -- ostensibly W.T. Grant's main offices -- was a "confusing" disclosure for a Georgia buyer. The court suggested furthermore that "to avoid confusion" the full address of store #70 should have been disclosed. Id. at 540. Three observations follow immediately. First, the facts of Welmaker -- even on as short a summary as the one given -- are clearly distinguishable from those at issue here. There is, for instance, no out-of-state address on this contract. Second, the court's statement that the full address of the Georgia branch store should have been disclosed was no more than a suggestion in dictum -- entirely unnecessary to the court's ruling and certainly a far cry from being a basis for judicial imposition of a specific disclosure requirement that is mandated neither by the statute nor by the regulations. Third, the Welmaker court found the disclosure in question to be misleading rather than specifically in violation of the identification requirement. Accordingly, its ruling is an illustration of how the lack of a specific, local address may result in a violation of Reg. Z 226.6(c)
requiring that additional information not be used to "mislead or confuse", rather than in a breach of the identification mandate. As a court of the same district observed in rejecting precisely the claim before us:
. . . It is clear that the violation in Welmaker was predicated on application of the "catch-all" provision of [Reg. Z] 226.6(c), rather than upon any specific statutory or regulatory provision requiring disclosure of the full address of the creditor. It is one thing to impose liability for a "technical" violation of the language of an express statutory or regulatory provision, and it is another matter entirely to rule . . . that omission of a non-required disclosure, without more, has rendered a disclosure statement so confusing and misleading as to constitute a violation of the Act. Houston v. Atlantic Federal S & L Assn. (N.D.Ga. 1976) 414 F. Supp. 851, 859 (emphasis added).
We fully concur with the Houston court.
Plaintiff does not suggest that the absence of an address renders the disclosure statement "misleading" or "confusing." Furthermore, a "common sense" approach is required to determine whether the identification requirement has been met, Brooks v. Maryville Loan & Finance Co. (11th Cir. 1982) 679 F.2d 837, 839, especially in light of the Supreme Court's recent statement that "meaningful disclosure" is the animating concept in the area of creditor identification. Ford Motor Credit Co. v. Cenance, supra, 452 U.S. at 159. In turn, " meaningful disclosure does not mean more disclosure", but "rather describes a balance between 'competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload]'." Ford Motor Credit Co. v. Milhollin, supra, 444 U.S. at 568 (emphasis in original). With the foregoing in mind it is fanciful even to suggest that the bank should be required -- in the absence of a specific mandate to do so -- to state an address on its disclosure statement. The bank is identified as Marine Midland Bank in five different places on the instalment contract. There surely could be no doubt in plaintiff's mind as to the identity of the bank. We take judicial notice that the bank's telephone number is listed in the telephone directory. It may take the plaintiff a few phone calls to establish who handles his business, but this is no more than customers of large, metropolitan banks are regularly required to do. It is frivolous to suggest that "an" address would be of substantial help in this matter. Addresses -- and even the location of a specific department at a particular address -- are likely to change over the expected life of any but the shortest credit transactions. Thus, an address on a disclosure statement may -- by drawing a customer to the wrong location -- be confusing or, at least, wasteful. In any event, these speculations suggest that requiring a specific address -- especially where the creditor knows precisely with whom he deals -- is the type of requirement that should be set after resolving the "competing considerations of complete disclosure and the need to avoid informational overload." It is not for the court to strike the "appropriate balance", Id., but for the administrative agencies with "broad experience with credit practices." Id. at 569.
Our attention has not been drawn to any Federal Reserve Board rule or interpretation which supports plaintiff's contention. Furthermore, such creditor identification as the bank provided is at least as generous as that found satisfactory in many cases. See, e.g., Sharp v. Ford Motor Credit Co. (7th Cir. 1980) 615 F.2d 423, 426; Augusta v. Marshall Motor Co. (6th Cir. 1979) 614 F.2d 1085, 1086. Accordingly, we find plaintiff's claim that the bank was not properly identified to be without merit. Accord Frisch v. Casavely-Machens Ford, Inc. (E.D.Mo. 1980) 497 F. Supp. 565, 568.
STATE LAW CLAIMS
The runt of plaintiff's legal litter is the contention that the bank violated New York's Motor Vehicle Retail Instalment Sales Act, Personal Property Law (PPL) §§ 301 et seq., and § 349 of New York's General Business Law (GBL) which bans deceptive practices in the conduct of business. It would surely be an exaggeration to label plaintiff's submission in this regard an "effort" to persuade the court. Rather, all we have from plaintiff on the question of liability is a collection of one-sentence conclusory statements, without elaboration, illustration or citation. See Plaintiff's Memorandum at 35, 36, 39; Complaint paras. 15-16, 18.
The claims under the GBL
are predicated on the alleged practice of selling "unwanted" credit life insurance, "quoting the wrong month's rebate figure," and the "inclusion of the various improper (sic) disclosed items back (sic) into the finance charge." We doubt whether, even if proven, all these acts can be termed "deceptive" under GBL § 349. We need not, however, speculate on this matter. Having found for defendant on each of the federal claims predicated on such acts, see claims ##II-VII, above, no recovery may be had under the GBL. See GBL § 349(d).
The claims under the PPL are more varied but equally unmeritorious. First, it is argued that the "failure to provide [plaintiff with] the required certificate of group life insurance" is a violation of PPL § 302(6). Plaintiff does not deem it necessary to point out precisely where in the vast expanse of subsection 6 of PPL § 302 there is a requirement that a certificate of group life insurance be provided. It appears that the second sentence of the first paragraph is the only provision which contains a requirement that any insurance policy be delivered. On plain reading, however, such requirement applies only to policies of insurance "on the motor vehicle."
Plaintiff concedes having received a certificate of insurance "with regard to the vendor's single interest insurance" -- the only insurance "on the motor vehicle" written in connection with this transaction. See Plaintiff's Memorandum at 35 n. (*); Exhibit F to Plaintiff's 3(g) Statement. We have been offered not a whit of argument why the statute should be interpreted also to require the delivery of policies of credit life insurance.
Second, plaintiff claims that the bank violated PPL § 305
by failing to rebate unearned credit life insurance premiums. We are, again, given no explanation on precisely how and why the statute is deemed to have been violated. We read the relevant provision as imposing on the "holder of the [instalment] contract" -- the bank -- an obligation to "pass along" as a credit those unearned premiums which it will receive or which it has received from the insurance carrier. There is no evidence before us, however, that the bank has received or will receive any refund from the insurance carrier.
Third, plaintiff argues that the bank violated PPL § 305
by failing "to fully and properly rebate other portions of the 'credit service charge'" -- broadly defined as the prepaid finance charge on the loan. See PPL § 301(8). The bank, in fact, rebated unearned finance charges according to an acceptable "Rule of 78's," see claim #II, above. Plaintiff makes no effort to demonstrate how such a rebate differs from the rebate rule of PPL § 305 or how the bank has failed, otherwise, "fully" and "properly" to rebate the credit service charge.
Fourth, plaintiff claims that the failure to "provide a written statement of the dates and amounts of payments made under the Marine Midland Instalment Contract" is a violation of PPL § 302(12). This provision states that "upon written request from the buyer, the holder of a retail instalment contract shall . . . [provide] to the buyer a written statement of the dates and amounts of payments and the total amount unpaid under such contract." Plaintiff's own statement establishes that no written request was sent to the bank until December 1979, well after the loan had been prepaid. Furthermore, plaintiff admits having received a statement acknowledging that the loan had indeed been paid off. See Plaintiff's Affidavit attached to Plaintiff's 3(g) Statement at 5. However, plaintiff characterizes this response as merely "partial" and states that what he really wanted was "a complete explanation of the various parts that went into the total amount that [he] had paid." Id. Although we have serious doubts whether PPL § 302(12) can properly be invoked after a loan has been paid off, we need not speculate about this question. On the assumption that it can be so invoked, we find that a statement from the bank indicating that the loan had been paid off satisfies the requirements of PPL § 302(12). There is no requirement in the language of PPL § 302(12) that the bank supply the detailed information which the plaintiff supposes himself to be entitled, nor has the plaintiff made any argument to persuade us that such a requirement should be imposed as a matter of judicial interpretation. Accordingly, we find all state law claims to be legally insufficient.
Based on the foregoing we grant summary judgment for plaintiff on the claim that the paragraph in the installment contract dealing with prepayment was unclear and misleading. See claim #I, above. Plaintiff's other arguments are without merit.
Accordingly, we grant summary judgment in defendant's favor on all other claims.
The statute entitles plaintiff to recover -- irrespective of the number of violations, 15 U.S.C. § 1640(g) -- the sum of actual damages, statutory damages of twice the amount of finance charges to a maximum of $1,000, costs, and reasonable attorney's fees. 15 U.S.C. § 1640(a). There is no contention that actual damages were suffered in connection with the claim on which plaintiff has prevailed. Furthermore, twice the finance charge -- $1,609.84 -- exceeds the $1,000 limitation. Therefore, plaintiff will be entitled to recover $1,000 in statutory damages, costs, and reasonable attorney's fees.
The entry of judgment in plaintiff's favor will, however, be held in abeyance pending the determination of the amount of reasonable attorney's fees. Let plaintiff's counsel submit -- on two week's notice -- a properly supported petition for reasonable attorney's fees. Such petition and any papers in opposition will be taken under advisement.