Baker v. Sunny Chevrolet, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

ELECTRONIC CITATION: 2003 FED App. 0391P (6th Cir.)

File Name: 03a0391p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: John E. Anding, DREW, COOPER & ANDING,

FOR THE SIXTH CIRCUIT Grand Rapids, Michigan, for Appellants. Daniel S. Saylor,

_________________ GARAN, LUCOW, MILLER, PC, Detroit, Michigan, for

Appellee. ON BRIEF: John E. Anding, DREW, COOPER

WANDA BAKER and SCOTT X & ANDING, Grand Rapids, Michigan, Phillip C. Rogers,

ZALEWSKI, on behalf of - Grand Rapids, Michigan, for Appellants. Daniel S. Saylor,

- GARAN, LUCOW, MILLER, PC, Detroit, Michigan,

themselves and all others Michael D. Wade, GARAN, LUCOW, MILLER, PC, Grand

- No. 02-1381

similarly situated, - Rapids, Michigan, for Appellee.

Plaintiffs-Appellants, >

, KENNEDY, J., delivered the opinion of the court. GUY,

- J. (pp. 17-21), delivered a separate concurring opinion, in

v. - which DAUGHTREY, J., joined.

-

SUNNY CHEVROLET, INC., a - _________________

Michigan corporation d/b/a -

- OPINION

WAYLAND CHEVROLET,

- _________________

Defendant-Appellee. -

N KENNEDY, Circuit Judge. This case presents an appeal

Appeal from the United States District Court from the district court’s order granting summary judgment in

for the Western District of Michigan at Grand Rapids. favor of Defendant-Appellee Sunny Chevrolet. Plaintiffs-

No. 01-00109—Robert Holmes Bell, Chief District Judge. Appellants Baker and Zalewski argue that the district court

erred when it determined that even if Defendant had violated

Argued: September 11, 2003 15 U.S.C. § 1638(b)(1), Defendant was not liable for statutory

damages. We AFFIRM.

Decided and Filed: November 4, 2003 BACKGROUND

Before: KENNEDY, GUY, and DAUGHTREY, Circuit On December 28, 2000, Plaintiff Baker signed a retail

Judges. installment sales contract (“RISC”) to purchase a car and

took possession of the vehicle on that date. Although she

asked for a copy of the contract, Defendant refused the

request. On January 11, 2001, citing inability to obtain

1

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 3 4 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

financing under the RISC,1 Defendant requested that Court. Both sides, however, only briefed the issue of

Plaintiffs return to the dealership to re-execute the deal adding statutory damages. Plaintiffs asked for reconsideration of the

the latter as a buyer. At the dealership, Defendant informed class certification ruling pending a reversal of the statutory

Plaintiffs that they would each have to sign a second contract. damages ruling.

Once again, despite being asked for a copy of the signed

contract, Defendant refused to provide Plaintiffs with a copy STANDARD OF REVIEW

of either contract. Plaintiffs finally received a copy of the

second contract approximately three weeks later, around We review a district court’s grant of summary judgment de

January 29, 2001. Plaintiff Baker never received a copy of novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d

the first contract that she signed. It is undisputed that 174, 178 (6th Cir. 1996). In deciding a summary judgment

Plaintiffs were given the actual RISC document for review motion, this court cannot weigh the evidence, judge the

prior to signing it and that the actual RISC accurately credibility of witnesses, or determine the truth of the matter

disclosed all of the transactions’ credit terms. asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). We must, however, view the evidence and draw all

Plaintiffs filed a class action lawsuit for violations of Truth “justifiable inferences” in the light most favorable to the non-

in Landing Act (“TILA”) and the underlying Regulation Z, movant. Id. Summary judgment is appropriate where “there

alleging that Defendant repeatedly failed to give the consumer is no genuine issue as to any material fact and...the moving

“a copy of the contract [in connection with the purchase and party is entitled to a judgment as a matter of law.” Fed. R.

finance of a motor vehicle] to keep prior to consummation of Civ. P. 56(c). “[T]he mere existence of some alleged factual

the transaction.” First Am. Class Action Compl. J.A. at 9. dispute between the parties will not defeat an otherwise

Plaintiffs, however, do not allege any actual damages, nor do properly supported motion for summary judgment...”

they claim that any of the disclosures that were made before Anderson, 477 U.S. at 247-48 (emphasis in original). Mixed

they signed the RISC were inaccurate. Plaintiffs sued only questions of law and fact are reviewed de novo. Williams v.

for statutory damages under 15 U.S.C. § 1640. The district Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).

court, per order dated February 6, 2002, denied the motion for

class certification because the Plaintiffs were not typical of ANALYSIS

their proposed class and because the class definition was

inadequate. The district court also, per order dated March 8, Congress enacted TILA in 1968 with the broad purpose of

2002, granted Defendant’s motion for summary judgment and promoting the informed use of credit by assuring meaningful

dismissed Plaintiffs’ complaint in its entirety on the basis that disclosure of credit terms to consumers. See generally, 15

Defendant’s refusal to provide the copies of the disclosures, U.S.C. § 1601(a); Ford Motor Credit Co. v. Milhollin, 444

while “seemingly inappropriate,” could not give rise to TILA U.S. 555, 559 (1980); Begala v. Ohio Nat’l Ass’n, 163 F.3d

statutory damages. Plaintiffs appealed both orders to this 948, 950 (6th Cir. 1999). This Court has held that the statute

must be considered liberally in the consumer’s favor. Jones

v. TransOhio Sav. Ass’n, 747 F.2d 1037, 1040 (6th Cir.

1984). The sections of TILA principally involved here are 15

1

In a typical RISC transaction, a dealer sells a vehicle to a customer

promising a certain type of financing which it ho pes to obtain from a third

party. Problems arise, howe ver, if the dealer is unable to obtain the

expected financing.

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 5 6 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

U.S.C. §§ 1638(a)2 and 1638(b),3 which required creditors to TILA. Regulation Z prescribes the form in which a creditor

make specific disclosures, and 15 U.S.C. § 1640(a),4 which must disclose the items pursuant to 15 U.S.C. § 1638.5

provides consumers with a cause of action for certain

violations of the act. Also of relevance on this appeal is The district court assumed, without so holding, that

Regulation Z, 12 C.F.R. § 226.1, et seq., a regulation Defendant violated § 1638(b)(1).6 It then held that statutory

promulgated by the Federal Reserve Board to implement damages were not available for this violation. Baker v. Sunny

Chevrolet, Inc., No. 1:01-CV-109, slip op. at 3, 5-6 (W.D.

Mich. March 8, 2002). The District Court further held that

failure to provide Plaintiffs with a copy of their contracts at

signing did not entitle Plaintiffs to statutory damages for

violations of 15 U.S.C. §§ 1638(a)(3)-(a)(6), 1638(a)(9).7

2 1. Plaintiffs are not entitled to Statutory Damages for

15 U.S.C. § 1638(a) contains substantive requirements of the Violations of 15 U.S.C. § 1638(b)(1)

creditor’s disclosures.

3 Plaintiffs argue that Defendant violated the form and timing

15 U.S.C. § 1638(b) contains the form and timing of the §1638(a) requirements of § 1638(b)(1) of TILA, and the related

disclosures.

4

The section prov ides:

Except as otherwise provid ed in this section, any creditor who 5

Regulation Z provides, in relevant part, that “[t]he creditor shall

fails to comply with any req uirement imp osed under this make the disclosure s required b y this subp art clearly and c onsp icuously

part...with respect to any person is liable to such person in an in writing, in a form that the consumer may keep.” 12 C.F.R.

amo unt equal to the sum of– § 226.17(a)(1). It further provides that creditors are required to make the

(1) any actual damage sustained by such person as a mandated disclosures “before consummation of the transaction.” 12

result of the failure; C.F.R. § 226.17 (b).

(2)(A)(I) in the case of an individual action twice the

amount of any finance charge in connection with the 6

transaction...(B) in the case of a class action, such The section pro vides:

amount as the court may allow, except that as to each Except as otherwise provided in this part, the disclosures

member of the class no minimum recovery shall be required under subsection (a) of this section shall be made before

applicable, and the total recovery und er this the credit is extended. Except for disclosures required under

subparagraph in any class action or series of class subsection (a)(1) of this section, all disclosures required under

actions arising out of the same failure to comply by the subsection (a) of this section...shall be conspicuously segregated

same creditor shall not be more than the lesser of from all other terms, data, or information provided in connection

$500,000 or 1 per centum of the net worth of the with a transaction, including any computations or itemization.

creditor... 15 U.S.C. § 16 38( b)(1).

In connection with the disclosures referred to in section 1638 of 7

this title, a creditor shall have a liability determined under These section require disclosure of the finance charge, 15 U.S.C.

paragraph (2) only for failing to com ply with the requirements § 1638(a)(3), the annual percentage rate, 15 U.S.C. § 1638(a)(4), the total

of section 1635 of this title or of paragrap h (2) (insofar as it of payments, 15 U.S.C. § 1638 (a)(5), the timing and amo unt of period ic

requires a disclosure of the “amount financed”), (3), (4), (5), (6), paymen ts, 15 U.S.C. § 16 38(a)(6), and the existence of a security interest,

or (9) of section 16 38(a) of this title... 15 U.S.C. § 1638(a)(9). Plaintiffs claimed that failure to provide them

15 U.S.C. § 16 40(a). with a copy of these disclosures constituted a complete failure to disclose.

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 7 8 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

provisions of Regulation Z. Regulation Z provides, in Statutory damages are available, this final sentence says,

relevant part, that “[t]he creditor shall make the disclosures “only for failing to comply with the requirements of

required by this subpart clearly and conspicuously in writing, section 1635 of this title or of paragraph (2) (insofar as it

in a form that the consumer may keep.” 12 C.F.R. requires a disclosure of the ‘amount financed’), (3), (4),

§ 226.17(a)(1). Defendant first argues that this Court should (5), (6), or (9) of section 1638(a) of this title, or for”

assume without deciding, as did the District Court, that a other situations not presented by these cases. “Only,” the

violation of § 1638(b)(1) occurred. Defendant then argues word we have italicized is conclusive against plaintiffs,

that statutory damages are not recoverable for violations of for it confines statutory damages to a closed list. Failure

§ 1638(b)(1) because consumers aggrieved by disclosure to emphasize the typeface of “finance charge” and

violations of § 1638 may seek statutory damages only in those “annual percentage rate” violates § 1632(a); omission of

case involving violations of §§ 1638(a)(2)(some), (3)-(6), (9). descriptive explanations violates § 1638(a)(8);

appearance of extra matter in the federal box violates

As noted above, the district court assumed for the purposes § 1638(b)(1). None of these subsections is on the list of

of the summary judgment motion that a violation of violations eligible for statutory damages.

§ 1638(b)(1) took place. Plaintiffs urge us to go beyond the

district court’s opinion and find that a violation did actually Baker v. Sunny Chevrolet Inc., No. 1:01-CV-109, slip op.

occur. This Court will typically refrain from considering at 4 (quoting Brown, 202 F.3d, 987, 991 (7th Cir. 2000)).

issues not passed upon by the lower courts. See, e.g., Blue The District Court also noted that a number of district courts

Cross & Blue Shield Mut. of Ohio v. Blue Cross and Blue outside the Seventh Circuit have followed the Brown

Shield Ass’n, 110 F.3d 318, 335 (6th Cir. 1997). This decision. Id. at 4-5.

restraint, however, is simply a matter of discretion, as the

Courts of Appeals remain free to resolve such issues if the Plaintiffs, relying almost exclusively on Lozada v. Dale

“proper resolution is beyond doubt” or “‘where injustice Baker Oldsmobile, Inc., 145 F. Supp.2d 878 (W.D. Mich.

might otherwise result.’” Id. (citing Singleton v. Wulff, 428 2000), argue that the Seventh Circuit and the district court

U.S. 106, 121 (1976). Defendant relies on the district court’s misread § 1640(a) to reach their respective holdings. The

discussion in its opinion denying class certification to argue Lozada opinion makes a very intricate argument that the

that proper resolution is not beyond doubt. Baker v. Sunny § 1640(a) discussion of statutory damages simply does not

Chevrolet, No. 1:01-CV-109, slip op. at 5 (W.D. Mich. Feb. apply at all to §1638(b)(1) claims. In other words, the

6, 2002) (“Because the facts have not been fully developed, limitation on the availability of statutory damages in §1638

the Court cannot determine whether a violation has violations applies only to “disclosures” in section § 1638 and

occurred.”) Plaintiffs do not address this argument in the § 1638(b)(1) is not a “disclosure” but is merely a “form and

appellate brief. We decline to resolve the factual question of timing of disclosure” requirement. Lozada, 145 F. Supp. at

whether a violation occurred and instead assume, as did the 888 (noting that “[s]uch a reading is consistent with the other

district court, that a violation did occur. types of violations described by the enumeration.’”). See also

Daenzer v. Wayland Ford, Inc., 193 F. Supp.2d 1030, 1036-

The district court, relying heavily on a Seventh Circuit 37 (W.D. Mich. Mar. 15, 2002) (discussing both Brown and

decision, found that statutory damages are not available for a Lozada and adopting the reading in Lozada). But see

violation of § 1638(b). The Seventh Circuit found that: Kilbourn v. Candy Ford-Mercury, 209 F.R.D. 121, 126-27

(W.D. Mich. Mar. 11, 2002) (discussing both Brown and

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 9 10 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

Lozada and adopting the reading in Brown). According to which disclosures under § 1638(a) must be made,

this position, § 1638(b) is not mentioned in the discussion of § 1638(a) disclosures may not be said to be made unless

limitation on damages and thus a full array of damages is and until they are made in compliance with § 1638(b)(1).

available for its violation. The problem with this Section 1638(b), by saying when and how a disclosure is

interpretation, however, is that, standing alone, the “form and made, becomes part of the definition of what constitutes

timing” requirement has no substance, it only makes sense if a ‘disclosure’ under TILA.

it is combined with substantive disclosures of § 1638(a). For

example, § 1640(a) applies to disclosures referred to in Lozada, 145 F. Supp.2d at 889.

subsections (a) and (b) of section 1637. Each subsection of

§ 1637 contains its own “timing” requirement.8 It would Defendant, relying on Brown, argues that such a reading of

therefore seem that untimely disclosure of items in § 1637(a) TILA creates a back door theory that the alleged failure to

and (b) would be subject to § 1640(a) statutory damages. 15 make timely written disclosures is not a disclosure at all.

U.S.C. § 1640(a). We therefore reject this reading of the Defendant’s reliance on Brown, however is misplaced. In

statute. Brown, the defendant provided the plaintiff with a timely

written disclosure. The problem in Brown was that there were

Plaintiffs, relying once again on Lozada, make a following two minor errors in the actual disclosure which resulted in

second argument in the alternative: violations of § 1638(a)(8) and § 1632(a), neither of which is

an enumerated violation contained in § 1640(a). Brown, 202

However, if a failure to deliver disclosures under F.3d at 990. The Brown court then rejected a back door

§ 1638(b) is considered a “disclosure [] referred to in theory that “information has been ‘disclosed’ in compliance

section 1638” within the meaning § 1640, then the failure with § 1638 only if all of the TILA and all of Regulation Z

to deliver disclosures in the manner provided by have been followed.” Id. at 991. The Brown court went on

§ 1638(b)(1) must be considered failure to disclose the to explain that

required terms under § 1638(a). The requirements of

§ 1638(b)(1) may not be considered ‘disclosures’ for Accepting this argument would destroy the point of

purposes of §1640 and yet not part of the disclosure § 1640(a). What sense would it make to omit § 1632,

requirements of §1638(a). Moreover, no basis exists for § 1638(a)(1), (a)(2) (in part), (a)(7), (a)(8), (a)(10),

considering a disclosure made if it is not made in (a)(11), (a)(12), and all of § 1638(b), (c), and (d) from the

accordance with the requirements of § 1638(b)(1). Since candidates for statutory damages if they came in through

§ 1638(b)(1) expressly provides the form and time in the back door on the theory that all formal shortcomings

infect the disclosures of the items that are on the list.

8 Brown, 202 F.3d at 991 (emphasis added). On the facts

See, e.g., 15 U.S.C. § 16 37(a) (“Before opening any account under before it, the Brown court properly rejected the back door

an open end consumer credit plan, the creditor shall disclose to the person theory. The facts of this case are clearly distinguishable,

to whom credit is extended each of the follow ing items...”) (emphasis

added); 15 U.S.C. § 1637(b) (“The creditor of any account under an open however, since Plaintiffs did not timely receive a copy of the

end consumer cred it plan sha ll transmit to the ob ligor, for each billing RISC. Plaintiffs therefore allege that § 1638(a)(2), (3), (4),

cycle at the end of which there is an ou tstanding balance in that (5), (6),(9) were violated because disclosures required under

account..., a statement setting forth each of the following items to the those subsections were not properly made.

extent applicable.”) (emphasis added).

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 11 12 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

Defendant’s reliance on two other cases to argue against First, § 1638(b) form and timing disclosures should be read

Plaintiffs’ position is likewise misplaced. In Collins v. Ray to apply to each subsection of § 1638(a) individually (i.e.

Skillman Olds-GMC Truck, Inc., 2001 WL 1711466 (S.D. § 1638(a)(3) is violated whenever a disclosure is not made

Ind. Dec. 3, 2001), the court rejected an argument similar to prior to consummation of the sale and whenever it is not

the one advanced here by Plaintiffs.9 However, the Collins made in writing in a form that a consumer may keep). It

court read Brown to reject the argument that “the alleged should not be read as an independent disclosure violation.

failure to make timely written disclosures was not a This interpretation is supported by the language and structure

disclosure at all.” Collins, 2001 WL 1711466, at *3. As of Regulation Z. 12 C.F.R. § 226.17, which is the first

explained above, we believe that this is a misreading of section under “Subpart C–Closed-End Credit,” provides that

Brown. In the second case, Graham v. RRR, LLC, 202 F. “[t]he creditor shall make the disclosures required by this

Supp. 2d 483, 485, 489 (E.D. Va. May 15, 2002), the court subpart clearly and conspicuously in writing, in a form that

also rejected a similar argument advanced by a plaintiff who the consumer may keep.” 12 C.F.R. § 226.17(a)(1) (emphasis

was allegedly asked to sign a blank retail installment sale added). Section 1638, titled “Transactions other than under

contract.10 There are several problems with relying on an open end credit plan,” is a section dealing with “closed-end

Graham. First, there was a factual dispute about whether the credit” transactions, such as the one in this case. 12 C.F.R.

plaintiff signed a blank RISC. Id. at 489 n. 3. Second, the § 226.2(a)(10) (defining “closed-end credit”). Requirements

court actually dismissed the entire argument as “untimely of § 1638(a) are explained in 12 C.F.R. § 226.18, which

raised.” Id. at 489. After dismissing the case, the court appears within the same Subpart C as does the general

engaged in a completely unnecessary dicta about the merits of disclosure requirements of § 12 C.F.R. 226.17(a) and (b).

the plaintiff’s argument with a single reference to § 1638(a) The regulation therefore appears to demand that every

and without any discussion of other courts’ decisions. We “closed-end credit” disclosure be provided in this manner.

therefore find its holding entirely unpersuasive. See, e.g., Polk v. Crown Auto, Inc., 221 F.3d 691, 692 (4th

Cir. 2000) (per curiam) (“However, on balance we believe

As the foregoing discussion illustrates, we are therefore left that the plain meaning of the regulation must be understood

with two readings of the statute, both of which find support in to be that written disclosure in the form specified in subpart

the relevant caselaw and neither of which appears to be (a) must be provided to the consumer at the time specified in

clearly correct on its face. The two arguments can best be subpart (b). That is, Crown Auto was required to make the

summarized as follows. disclosures to Polk in writing, in the form that he could keep,

before consummation of the transaction.”) (emphasis in the

original). Finally, § 1368(b)(1) does not contain a “writing in

a form the consumer may keep” requirement. There is, thus,

9 no reason to conclude that the violation of 12 C.F.R. § 226.17

The only difference in facts was that the plaintiff in Collins never

asked for a copy of the RISC, whereas Plaintiffs in this case did. The is a § 1368(b) violation and not a § 1368(a) violation.

difference, in our op inion, ho wever, is insignificant.

Second, § 1638(b) is a separate requirement that relates

10

Apparently, there were two RISCs involved here. First one had a only tangentially to the underlying substantive disclosure

12.5% interest rate and the plaintiff was provided with a copy of it. requirements of § 1638(a). Under this theory, a § 1638(b)

Second one was supp osed to be filled out if the defendant obtained a violation is not one of the enumerated violations that warrant

lower interest rate. There was a factual dispute as to whether the plaintiff

signed a blank RISC. a statutory damages award. This theory thus creates two

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 13 14 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

types of violations: (a) complete non-disclosure of 2. Section 1640(b) forecloses Plaintiffs’ recover of any

enumerated items in § 1368(a), which is punishable by damages in this case.

statutory damages; and (b) disclosure of the enumerated items

in § 1368(a) but NOT in the manner required by the The problem of resolving this complicated question of

Regulation and § 1368(b)(1), which is not subject to the statutory construction is aided by the provisions in § 1640(b).

statutory damages. This theory still recognizes that the proper Neither party briefed this issue on this appeal or before the

manner of making § 1638(a) disclosures is in writing, in the district court. Nevertheless, our independent review of the

form that the consumer may keep. It also, however, statute leads us to the conclusion that the plain meaning of 15

recognizes that in a situation like the case at bar, where U.S.C. § 1640(b) bars any recovery for Plaintiffs. In re Allied

Plaintiffs were clearly not prejudiced by the untimely delivery Supermarkets, Inc., 951 F.2d 718, 725-26 (6th Cir. 1991)

of the RISC,11 the failure to deliver the written disclosures in (recognizing that although in general appellate courts do not

the form that the consumer may keep is actionable only if the review questions raised for the first time on appeal, it is

consumer can show actual damages. appropriate to do so when the question is a legal one). See

also Washington Gas Light Co. v. Virginia Elec. & Power

We now expressly adopt this second interpretation because Co., 438 F.2d 248, 250 (4th Cir. 1971) (“if deemed necessary

it is the only way to reconcile the imposition of damages to reach the correct result, an appellate court may sua sponte

under § 1640(a) with the excuse of certain violations under consider points not presented to the district court and not even

§1640(b).12 raised on appeal by either party.”) (citing U.S. v. Continental

Can Co., 378 U.S. 441, 457, 470 (1964)).

11 Section 1640 is a general “civil liability” section in the

At oral argume nt, Plaintiffs’ counsel conceded that Plaintiffs were

not going to shop the Defendant’s offer around but instead intended to

TILA. In subsection (a) it provides for either actual and/or

complete the purchase. statutory damages for various TILA violations. Subsections

(b) and (c) provide for (1) correction of errors, 15 U.S.C.

12 § 1640(b), and (2) the treatment of unintentional violations

As explained below, § 1640(b ) provides that the violations that are

corrected within 60 days by the lender are not subject to statutory and bona fide errors, 15 U.S.C. § 1640(c). More specifically,

dama ges, assuming certain conditions are met. 15 U.S.C. § 16 40(b). This section 1640(b) provides:

provision leads us to conclude that Congress was more concerned with the

accuracy of the disclosures (by imposing both actual and statutory A creditor...has no liability under this section ...for any

dama ges) then with the timing of the disclosures (by imposing only actual

damages). Were we to read these two subsections in the manner urged by failure to comply with any requirement imposed under

Plaintiffs, we would have to assume that Congress simultaneously thought this part..., if within sixty days after discovering an error,

that the timing of the disclosures was (1) important enough to warrant ...and prior to the institution of an action under this

statutory damages under § 1640(a) and (2) unimpo rtant eno ugh to excuse section or the receipt of written notice of the error from

a delay in performance by as much as sixty days in the absence of actual the obligor, the creditor...notifies the person concerned of

damages under § 1640(b). Such a contradictory reading goes against the

basic canons of statutory construction. See, e.g., U.S. v. Branson, 21 F.3d

the error and makes whatever adjustments in the

113, 116 (6th Cir. 1994) (noting that statutes should not be read in a appropriate account are necessary to assure that the

manner that renders them mea ningless, that they must be read as a whole person will not be required to pay an amount in excess of

and construed to give each word operative effect, and that they should be the charge actually disclosed, or the dollar equivalent of

interpreted to avoid untenable distinctions a nd unreaso nable results

whenever possible) (citations omitted).

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 15 16 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

the annual percentage rate actually disclosed, whichever 619 F.2d at 250-51. See also Ratner, 329 F. Supp. at 280-81

is lower. and n. 17. The problem with this interpretation of the

legislative history of § 1640(b) is that §1640(c) explicitly

15 U.S.C. § 1640(b). The applicability of this section is a deals with “clerical, calculation, computer malfunction and

matter of first impression in this Circuit and there appears to programming, and printing errors.” 15 U.S.C. § 1640(c).

be very sparse discussion of it in the general caselaw. The Therefore the Third Circuit’s and the Southern District of

Third Circuit has considered the argument that § 1640(b) New York’s reading of the legislative history would render

applies solely to mathematical, not informational errors, such § 1640(b) meaningless. See, e.g., TRW, Inc. v. Andrews, 122

as failure to provide disclosures. Thomka v. A.Z. Chevrolet, S.Ct. 441, 449 (2001) (“it is a cardinal principle of statutory

Inc., 619 F.2d 246, 251-52 (3rd Cir. 1980). The court went construction that the statute ought, upon the whole, be so

on to explain that construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void or insignificant.”) (citations

Notice in a case such as this would be ineffectual, since omitted); Bronson, 21 F.3d 116. Furthermore, this reading is

there are no lower mathematical figures on which the contradictory to the plain meaning of § 1640(b) since that

remedial cost would be calculated. It is therefore subsection appears to give creditors a sixty-day window to

possible that providing exemption under Section 1640(b) correct any errors made as long as certain requirements are

in case like this would provide an incentive for lenders to made. Although, as the Third Circuit noted, this may not

delay sending disclosure forms until after the agreement make great policy, Congress clearly illustrated its ability to

is reached. limit the types of errors covered when it enacted § 1640(c).

We must respect its decision.

Id. at 252. The Third Circuit, however, expressly chose not

to resolve this question because the facts of its case indicated In this case, Defendant provided Plaintiffs with the copy of

that the defendant never actually notified the plaintiff that the RISC two weeks after the signing date, which was clearly

there was a disclosure error. Id. See also Molenbeek v. West within 60 days. Furthermore, there is no evidence in the

Auto Michigan Auto & Truck Outlet, Inc., 2001 WL 1602654, record that Defendant received any written notice from

at *4 (W.D. Mich. 2001) (expressing doubt that 1640(b) Plaintiffs prior to the mailing of the RISC. Finally, Plaintiffs

applies to non-written, non-calculation errors but nevertheless will not be required to pay an amount in excess of the charge

concluding simply that the defense does not apply because the actually disclosed since she was provided with a copy of the

defendant did not notify the plaintiff as the statute requires). very document she signed.

In making its observations, the Third Circuit relied heavily on

the legislative history as summarized in Ratner v. Chemical CONCLUSION

Bank, 329 F. Supp. 270, 281-82 and n. 17 (S.D.N.Y. 1971)

(deciding the case dealing with a § 1640(c) defense only). In sum, we conclude that Defendant’s failure to timely

Thomka and Ratner courts observed that “[t]he original draft provide Plaintiffs with a copy of RISC does not entitle

of the Act permitted no errors, but in response to fears that Plaintiffs to any statutory damages on the alternative grounds

simple clerical mistakes in mathematical calculations of the (1) that § 1638(b)(1) violation is not subject to statutory

lease financial charge and annual percentage rate would create damages and (2) that Defendant complied with § 1640(b)

unavoidable liability...the affirmative defenses of Section provisions for the correction of errors.

1640(c), as well as Section 1640(b) were added.” Thomka,

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 17 18 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

__________________ interpretation which is inconsistent with the intent of

Congress.” Id. at 667.

CONCURRENCE

__________________ TILA governs disclosures required for “closed ended”

transactions (like automobile loans), dictating the substantive

RALPH B. GUY, JR., Circuit Judge, concurring. I concur disclosures that must be made in 15 U.S.C. § 1638(a), the

in the result and write separately to further clarify the reasons applicable form and timing requirements in 15 U.S.C.

for affirming the decision to grant summary judgment to § 1638(b)(1), and the damages available for violations of

Sunny Chevrolet in this action for statutory damages under those provisions in 15 U.S.C. § 1640(a).1 The critical

the Truth In Lending Act (TILA), 15 U.S.C. § 1640(a)(2). portions of § 1640(a) state as follows:

Like the district judge, I would assume, arguendo, a violation

of the form and timing requirements of 15 U.S.C. § 1638(b), Except as otherwise provided in this section, any

and its implementing regulation, Regulation Z, 12 C.F.R. creditor who fails to comply with any requirement

§ 226.17, both because resolution of the issue is unnecessary imposed under this part, including any requirement under

to this appeal and because the Federal Reserve Board has section 1635 of this title, or part D or E of this subchapter

revised its Official Commentary to Regulation Z in an attempt with respect to any person is liable to such person in an

to clarify the issue. See 12 C.F.R. Part 226, Supp. I, p. 434 amount equal to the sum of–

(2003) (“17(b) Time of Disclosures”). I also agree that

statutory damages are not available under § 1640(a)(2) for the (1) any actual damage sustained by such person as a

violations alleged in this case for the reasons discussed below. result of the failure;

I would not, however, reach the novel question of whether

defendant could rely on § 1640(b) to escape damages for (2)(A) (i) in the case of an individual action twice the

failure to comply with TILA’s form and timing requirements amount of any finance charge in connection with the

because the issue was not developed either in the district court transaction [in statutory damages], . . . .

or on appeal. ....

The TILA was enacted with the “broad purpose of

promoting ‘the informed use of credit’ by assuring

‘meaningful disclosure of credit terms’ to consumers.” Ford

1

Motor Credit Co. v. Milhollin, 444 U.S. 555, 559 (1980) Disclosures required for “closed ended” credit transactions

(quoting 15 U.S.C. § 1601); see also Begala v. PNC Bank, include: (1) the identity of the creditor; (2) the “amount financed”;

Ohio Nat’l Ass’n, 163 F.3d 948, 950 (6th Cir. 1998). When (3) the “finance charge”; (4) the “annual percentage rate”; (5) the

called upon to interpret a statute, we must review “‘the “total payments”; (6) the number, amount, and due dates or period

particular statutory language at issue, as well as the language of payments; (7) the total sale price; (8) descriptive explanations

and design of the statute as a whole.’” Walker v. Bain, 257 of specified terms; and (9) where credit is secured, a statement that

F.3d 660, 666-67 (6th Cir. 2001) (citation omitted), cert. the security interest has been taken. 15 U.S.C. § 1638(a)(1)-(9).

denied, 535 U.S. 1095 (2002). We may not rely on the literal Further disclosures are required in certain circumstances by

§ 1638(a)(10)-(14). In addition to these “substantive” disclosures,

language when it would “lead to absurd results or an the form and timing requirements of § 1638(b)(1) state that the

disclosures “shall be made before the credit is extended.”

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 19 20 Baker, et al. v. Sunny Chevrolet, Inc. No. 02-1381

. . . In connection with the disclosures referred to in found the list was “not a positive and exclusive enumeration

section 1638 of this title, a creditor shall have a of provisions for which statutory damages are provided,” but

liability determined under paragraph (2) only for rather, a “reverse description of exceptions.” Id. As a result,

failing to comply with the requirements of . . . the district court concluded that violators of § 1638(b) would

paragraph (2) . . . , (3), (4), (5), (6), or (9) of section remain subject to statutory damages because § 1638(b) is not

1638(a) of this title, or for failing to comply with enumerated for exception from the general rule.

disclosure requirements under State law for any term

which the Board has determined to be substantially the While the structure of § 1640(a) makes the Lozada

same in meaning under section 1610(a)(2) of this title as interpretation plausible, the language and design of these

any of the terms referred to in any of those paragraphs of provisions convince me that the Seventh Circuit and a

section 1638(a) of this title. majority of district courts addressing the issue are correct in

concluding that statutory damages are not available for

Id. (emphasis added). violation of § 1638(b)(1). The limitation of the final sentence

of § 1640(a) quoted above explicitly applies “in connection

The majority of decisions addressing the issue presented in with the disclosures referred to in § 1638” — not just

this case have adopted the interpretation articulated by the § 1638(a) — it also further states that statutory damages are

Seventh Circuit in Brown v. Payday Check Advance, Inc., 202 available only for the failure to comply with the enumerated

F.3d 987 (7th Cir.), cert. denied, 531 U.S. 820 (2000), which subsections of § 1638(a). This interpretation is also

reasons that the use of the term “only” in the final sentence consistent with the legislative history concerning the addition

confines statutory damages for any violations of § 1638 of the final sentence, which indicates that the amendments

(including violations of § 1638(b)(1)), to the closed list of were intended to limit a creditor’s liability for statutory

enumerated subsections.2 Plaintiffs urge this court to reject penalties on “closed ended” transactions to disclosures of “the

Brown and adopt a contrary interpretation articulated in amount financed, the finance charge, the total of payments,

Lozada v. Dale Baker Oldsmobile, Inc., 145 F. Supp.2d 878 the annual percentage rate, the number, amount and due dates

(W.D. Mich. 2001). See also Daenzer v. Wayland Ford, Inc., of payments, any security interest taken, and, where

193 F. Supp.2d 1030, 1036-37 (W.D. Mich. 2002). applicable, the consumer’s right to recission.” Kilbourn, 209

F.R.D. at 127 n.4 (quoting S. Rep. No. 96-73, at 7 (1979)

The district court in Lozada reasoned that the first sentence (reprinted in 1980 U.S.C.C.A.N. 280, 285)). Not

of § 1640(a) represented a broad statement that statutory coincidentally, these specified disclosures correspond directly

damages are available for violations of “any requirement to the sections enumerated in § 1640(a).

imposed” by TILA, “[e]xcept as otherwise provided.” 145 F.

Supp.2d at 886 (quoting § 1640(a)). As for the list of As an alternative theory, plaintiffs contend that statutory

subsections in the final sentence quoted above, the court damages are available because the failure to comply with the

form and timing requirements of § 1638(b)(1) constitutes a

complete failure to make any of the substantive disclosures

2

See, e.g., Kilbourn v. Candy Ford-M ercury, Inc., 209 F.R.D. 121, required by § 1638(a) — including those for which statutory

124-25 (W .D. M ich. 20 02); Nigh v. Koons Buick Pontiac GMC, Inc., 143 damages are expressly available. This argument fails to

F. Supp.2d 535, 548-49 (E.D . Va. 2 001 ); Molenbeek v. W. Mich. Auto & persuade as it would turn the stated congressional intent on its

Truck Outlet, Inc., No. 1:00-CV-286, 2001 WL 1602654, at *5-6 (W.D.

Mich. M ar. 15, 2001).

head. As the Brown court aptly reasoned:

No. 02-1381 Baker, et al. v. Sunny Chevrolet, Inc. 21

[A]ccepting this argument would destroy the point of

§ 1640(a). What sense would it make to omit § 1632,

§ 1638(a)(1), (a)(2) (in part), (a)(7), (a)(8), (a)(10),

(a)(11), (a)(12), and all of § 1638(b), (c), and (d) from the

candidates for statutory damages if they came in through

the back door on the theory that all formal shortcomings

infect the disclosures of the items that are on the list?

Congress included some and excluded others; plaintiffs

want us to turn this into universal inclusion, which would

rewrite rather than interpret § 1640(a).

202 F.3d at 991. See also Kilbourn, 209 F.R.D. at 127-28.