(concurring specially):
I concur in the results reached by Judge Barrett in his opinion filed herein, but I would like to express somewhat different reasons.
*239In my view, the summary judgment entered by the trial judge must be set aside for the reason that its entry was contrary to Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732, in that the class action matter had not then been fully acted upon. See also Sarasota Oil Co. v. Greyhound Leasing & Financial Corp., 483 F.2d 450 (10th Cir.). Also, it should be set aside as to plaintiff Little Redhouse because a substantial factual issue remains unresolved. This was whether his purchase of the vehicle was exempt by the Act because it was for a commercial use. There is a conflict in the record as to statements on this subject made at the time of purchase. These several problems are sufficient to raise the fact issue. At the “hearing,” conflicting evidence was offered.
As to plaintiff Brady Tah, there was no actual issue of fact so raised, but in view of Eisen, the judgment as to her should be also set aside in order that the class action matter can be first decided.
As to the class action issue generally, the determination, to the limited extent it has been made, should be set aside and new and proper findings made by the trial court as to all the required elements. This also should be done in the sequence suggested by Eisen. The recent changes brought about by P.L. 93-495, since some portions are applicable to this case, must be considered by the trial court.
The matter of damages is in my opinion determined solely by the statute, and actual damages are not a consideration. Again, see the changes in section 408(a) brought about by P.L. 93-495 as to limitations on amounts.
The deferral of a portion of the down-payment without cost to the buyer does not in my opinion constitute a violation of the statutory requirements. The Act is intended to require a disclosure of the cost of the credit, and no such cost is involved as to this element. The note was accepted as downpayment together with whatever else was so received. This may be done under the Act.
I agree that the individual defendant, Thomas E. Redd, cannot be held liable under the Act.
There is an additional factor in the judgment of the trial court which should be considered. This is the matter of attorney fees awarded to plaintiffs. Such fees do not automatically follow a judgment without an inquiry into the question of whether there is in fact an attorney-client relationship giving rise to an understanding that the client owes a fee, or a contingent fee arrangement. Also when fees are allowed, they can only go to an individual or an organization permitted or authorized to receive such fees, including those publicly funded.
WILLIAM E. DOYLE, Circuit Judge (dissenting).I respectfully dissent.
I.
THE LIABILITY QUESTION
In the case of Little Redhouse all disclosures were not made on one document as required by 12 C.F.R. § 226.8(a) and the UUCCC, but even considering all of the documents together the required disclosures were not made. In any event, there is good reason for requiring the disclosure to be on one document. It is difficult enough to fathom the transaction by looking at one document — it is impossible by referring to a number.
Redhouse paid $300.00 in cash and, in addition, he signed a note at time of closing in the amount of $221.00. The full deferred purchase price was not disclosed. As to his $221.00 note which was payable on or before May 5, it was not disclosed in the documents that no interest would have been chargeable if the money was paid by May 5. Otherwise, the interest would have been 18% per annum. This appeared in the note. Admittedly this Redhouse transaction was ambiguous and gave rise to a violation of the law.
Plaintiff Brady Tah purchased a new pickup truck for a cash price of $3695.00. A down payment of $1062.00 was re*240quired. She paid $800.00 cash and signed a note for the remainder. The Invoice Order indicates that the note was for $288.00, or $26.00 more than the remainder of the down payment.1 The amount outstanding on the note was more than twice the amount of any regularly scheduled payments. Hence, these amounts were improperly treated as part of the down payment. See 12 C.F.R. § 226.504. This confusion did not conform to the statutes.
It is not possible to tell for certain whether the documents as a whole in the case of Brady Tah show a full disclosure. In any event, the failure to disclose on one document is sufficient to constitute a violation, 12 C.F.R. § 226.8(a).
II.
THE GRANT OF SUMMARY JUDGMENT
There does not appear to be any genuine issue of fact. The only possible dispute pertains to whether it is a consumer credit transaction and this requires that the property which is the subject of the transaction be primarily for personal, family, household or agricultural purposes. The majority has ruled that there was a genuine issue of fact on this.
Redhouse submitted an affidavit that he intended to and did use the vehicle for personal, family and household needs. Defendant relied on an affidavit of a salesman which is not in the record but which is said to allege that Redhouse told the car salesman he wanted the truck for his work. Defendant Redd offered to testify to this statement, but this was excluded as hearsay because Redhouse does not speak English and the alleged statement was made through an interpreter who was not called as a witness. At trial Redhouse denied making such a statement.
It seems questionable that the Red-house out of court statement which depends on a correct translation from the Navajo language could be regarded as substantial evidence sufficient to create a dispute even had it been admitted in evidence, and perhaps it should have been received for whatever it was worth. (Why, however, should such a big thing be made of this issue? The statutes were designed to protect people who lack knowledge of financial matters. Also, it is easy enough to recognize judicially that the Indian people use trucks for every purpose.)
The only objective evidence which is countervailing is that Redhouse said that his occupation was carpenter. That statement does not mean that he used his truck in his work. He said at the trial that he used the truck to drive to and from work, but that did not raise an inference that it was not used for personal purposes. It is noteworthy also that this did not emerge as an issue in the pleadings.
III.
THE CLASS ACTION ISSUE
There is no persuasive reason why this cannot be treated as a class action under Rule 23(b)(8). Contrary to the statement in the majority opinion, damages are obtainable under a subsection (3) class action. However, the question is not before us on appeal in any event because a certificate has not been issued pursuant to 28 U.S.C. § 1292 by the trial court and the question is interlocutory. The class action certification, if it could be called such, is at this juncture incomplete. There have not been findings as to the criteria set up in Rule 23 for a class action. Therefore, this part of the cause ought to be remanded to complete the Rule 23 requirement if it is going to be a class action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) is relied on by the majority opinion as precluding a decision on the merits prior to the certification of *241the class action. I do not so interpret Eisen. The Supreme Court in that case was preoccupied with the payment of notice costs and ruled that a preliminary trial on the merits could not precede determination of whether it was a class action. To hold that the judge must never take up any aspect of the merits of the case until the class action issue has been determined is beyond the scope of Eisen.
IV.
THE DAMAGE QUESTION
It was not necessary to establish that actual damages were suffered. 15 U.S.C. § 1640(a), UUCCC and U.C.A. § 70B-5-203 (1953 as amended) provide for liquidated damages and thus dispense with the need for proving actual damages.
V.
LIABILITY OF DEFENDANT REDD
Since it is questionable as to whether Mr. Redd was a creditor under the Act and the regulations, it would seem proper to excuse Mr. Redd from liability personally. Inasmuch as the Act does not identify employees or corporate agents as creditors, it follows that these individuals cannot be held responsible.
* * * * 4c *
Therefore, I would affirm the judgments in favor of Little Redhouse and Brady Tah as against Quality Ford Sales, Inc. Inasmuch as the class action aspect is not ripe, the propriety of the class action is not before us. This aspect ought to be remanded for further proceedings.
My basic objection is to the narrow view of liability taken by the majority.
. There is some dispute as to whether the note, which is not in evidence, was for $288.00 or $262.00. Plaintiffs contend the note was treated improperly on the disclosure statement even if it was for $262.00.