REVISED, June 25, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30443
_____________________
WILMORE GREEN, III; MARSHA W. GREEN,
on behalf of themselves and all
others similarly situated,
Plaintiffs-Appellants,
versus
LEVIS MOTORS, INC., ET AL.,
Defendants,
LEVIS MOTORS, INC., doing business as
Levis Mitsubishi; JOHN DOES, 1-10;
HANCOCK BANK OF LOUISIANA; ABC
INSURANCE; XYZ INSURANCE CO.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Middle District of Louisiana
_________________________________________________________________
June 22, 1999
Before KING, Chief Judge, and REYNALDO G. GARZA and JOLLY, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:
Wilmore and Marsha Green have sued their car dealer and the
bank that holds their retail installment contract for a violation
of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. The district
court granted summary judgment for both Levis Motors, Inc. d/b/a
Levis Mitsubishi (the car dealer) and Hancock Bank of Louisiana
(the holder of the installment contract). The district court erred
in granting summary judgment for Levis Motors, but correctly
granted summary judgment for Hancock. We therefore reverse in
part, affirm in part and remand for further proceedings.
I
The core facts in this case are not in dispute. On or about
August 31, 1995, (and this date is important), Wilmore and Marsha
Green purchased a used car from Levis Motors. To finance this
purchase, the Greens entered a retail installment contract (“RIC”)
with Levis Motors. As required by the Truth in Lending Act
(“TILA”), the contract disclosed the “amount financed” and, in
conjunction with the disclosure of this amount, purported to
itemize an amount paid to the state of Louisiana for licensing
fees. See 15 U.S.C. § 1638(a)(2)(B)(iii) (West 1998). The
relevant portion of the contract reads as follows:
Itemization of Amount Financed
(1) Cash Price $ 11,332.34
(2) (a) Cash Downpayment $ 700.00
(b) Net Trade-In Allowance $ n/a
(3) Unpaid Balance $ 10,632.34
* * *
(5) Amount Paid to Public Officials For:
* * *
(c) License Fee $ 40.00
The issues in this case surround the amount listed as “Paid to
Public Officials For License Fee.” Although the RIC lists the
amount paid to Louisiana as $40, the state only charged $22 for
-2-
licensing involved with the Greens’ car. Levis Motors retained the
$18 balance. Apparently, the practice of tacking on dealer charges
to amounts paid to third parties is common in the automotive sales
industry, and the balance retained is referred to as an “upcharge.”
According to Levis Motors, the $40 amount was a standard
licensing fee that it applied to the sale of all its cars. In some
of the sales, the actual amount charged by Louisiana exceeded the
$40 listed, and in others (such as the sale to the Greens) the
state charged less than $40. (Louisiana bases its licensing fee on
the sale price of the automobile and the length of time the license
remains valid.) The Greens have alleged that Levis Motors violated
the TILA because of the RIC’s inaccuracy in disclosing the amount
paid to third parties.
After executing the RIC with the Greens, Levis Motors assigned
the contract to Hancock. Another provision of the RIC plays an
important role in evaluating the potential liability of Hancock.
That provision, which the FTC requires for all consumer credit
contracts, see 16 C.F.R. § 433.2 (1998), states the following:
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO
ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT
AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT
HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER
BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR
HEREUNDER.
(This clause is referred to below as the “FTC clause.”) The Greens
sued both Levis Motors and Hancock for violating the TILA. The
history of the various, relevant regulations and agency
-3-
interpretations is somewhat complex. Therefore, we first turn to
the applicable code law before addressing the district court’s
reasoning and the parties’ arguments.
II
A
The statutory text upon which the Greens base their claim is
found in 15 U.S.C. § 1638(a)(2)(B)(iii):
(a) Required disclosures by creditor
For each consumer credit transaction other than under an
open end credit plan, the creditor shall disclose each of
the following items, to the extent applicable:
***
(2)(B) In conjunction with the disclosure of
the amount financed, a creditor shall provide
a statement of the consumer's right to obtain,
upon a written request, a written itemization
of the amount financed. . . . Upon receiving
an affirmative indication, the creditor shall
provide, at the time other disclosures are
required to be furnished, a written
itemization of the amount financed. For the
purposes of this subparagraph, "itemization of
the amount financed" means a disclosure of the
following items, to the extent applicable:
***
(iii) each amount that is or will be paid to
third persons by the creditor on the
consumer's behalf, together with an
identification of or reference to the third
person;
Instead of giving the Greens the option of requesting a written
itemization of the amount financed, Levis Motors decided to supply
this itemization automatically.1 An underlying issue in the
1
12 C.F.R. Part 226, Supp. I, § 226.18(c)(1) specifically
allows creditors to provide an itemization as a matter of course,
without notifying the consumer of the right to receive it.
-4-
Greens’ case is whether Levis Motors’s retention of an upcharge,
without notification to the Greens that the upcharge was included
in the amount listed as paid to a third party, violates this
statutory provision.
At the time the Greens and Levis Motors executed the RIC, the
only relevant regulatory provisions offering any guidance were 12
C.F.R. 226.18(c)(iii) (a section within “Regulation Z,” 12 C.F.R.
226), and 12 C.F.R. Part 226, App. H-3 (“model form”). These two
regulatory enactments have not changed since the time of the RIC’s
execution (August 31, 1995). Neither the regulation nor the model
form provide any further guidance--with any relevance to this
case--than that already present on the face of
§ 1638(a)(2)(B)(iii). The regulation states:
For each transaction, the creditor shall disclose the
following information as applicable:
***
(c) Itemization of amount financed. (1) A
separate written itemization of the amount
financed, including:
***
(iii) Any amounts paid to other persons by the
creditor on the consumer’s behalf. The
creditor shall identify those persons.2
12 C.F.R. § 226.18(c)(iii) (1999). Model form H-3 appears as
follows:
2
The following payees may be described using generic or other
general terms and need not be further identified: public officials
or government agencies . . . [This footnote is a part of the quoted
regulation.]
-5-
Itemization of the Amount Financed of $ __________
$ ________ Amount given to you directly
$ ________ Amount paid on your account
Amount paid to others on your behalf
$ ________ to [public officials] [credit bureau]
[appraiser] [insurance company]
$ ________ to [name of another creditor]
$ ________ to [other]
$ ________ Prepaid finance charge
These were the only relevant materials promulgated by the Federal
Reserve Board (“FRB”) (which is charged with elaborating on the
TILA’s text, see 15 U.S.C. § 1604) at the time the Greens entered
the RIC. Nevertheless, some of Levis Motors’s and Hancock’s
arguments rely on FRB interpretations proposed and issued after
execution of the RIC. A description of these materials follows.
B
In December 1995, the FRB staff proposed an official staff
interpretation of § 1638(a)(2)(B)(iii). See Truth in Lending, 60
Fed. Reg. 62764, 62765, 62769 (1995) (proposed Dec. 7, 1995). This
proposed interpretation provides the following:
Creditor-imposed charges added to amounts paid to others.
A creditor that offers an item for sale in both cash and
credit transactions sometimes adds an amount (often
referred to as an “upcharge”) to a fee charged to a
consumer by a third party for a service (such as for a
maintenance or service contract) that is payable in an
equal amount in both types of transactions, and retains
that amount. At its option, the creditor may list the
total charge (including the portion retained by it) as an
amount paid to others, or it may choose to reflect the
amounts in the manner in which they were actually paid to
or retained by the appropriate parties.
-6-
Truth in Lending, 60 Fed. Reg. at 62769 (emphasis indicated by
underlining added). The FRB never adopted this proposed
interpretation. Instead, the FRB promulgated a somewhat more
restrictive interpretation in April 1996:
Charges added to amounts paid to others. A sum is
sometimes added to the amount of a fee charged to a
consumer for a service provided by a third party (such as
for an extended warranty or a service contract) that is
payable in the same amount in comparable cash and credit
transactions. In the credit transaction, the amount is
retained by the creditor. Given the flexibility
permitted in meeting the requirements of the amount
financed itemization (see the commentary to § 226.18(c)),
the creditor in such cases may reflect that the creditor
has retained a portion of the amount paid to others. For
example, the creditor could add to the category “amount
paid to others” language such as “(we may be retaining a
portion of this amount).”
Truth in Lending, 61 Fed. Reg. 14952, 14956 (1996) (effective
April 1, 1996) (referred to below as the “FRB official
interpretation”) (emphasis indicated by underlining added). The
FRB’s accompanying explanation explains why this officially adopted
interpretation is more restrictive than its previously proposed
counterpart:
[The December, 1995 proposed interpretation] stated that
a creditor could include in the “amount paid to others,”
any amount retained by the creditor without itemizing or
noting this fact. Concern is raised about the
appropriateness of such treatment under the TILA where a
substantial portion of a fee categorized as “amounts paid
to others,” is in fact retained by the creditor.
Accordingly, a sentence has been added to clarify that
given the flexibility in itemizing the amount financed,
creditors may reflect that they have retained a portion
of the “amount paid to others” rather than disclosing the
specific amount retained.
-7-
61 Fed. Reg. 14952, 14954 (1996). After the April 1996, adoption
of the official interpretation,3 a handful of district courts (most
within the state of Illinois) disagreed as to whether the FRB
interpretation would allow creditors to lump the upcharge in with
the fees paid to third parties--without informing the buyers that
the creditor included an upcharge.4 Subsequently, the Seventh
Circuit settled the intra-circuit controversy by reading the FRB’s
interpretation as requiring creditors either to itemize the
upcharge separately or to include some language indicating that it
may have listed the upcharge and the actual amount paid to third
parties as one numerical value. Gibson v. Bob Watson Chevrolet-
Geo, Inc., 112 F.3d 283, 285-86 (7th Cir. 1997) (Posner, C.J.).
III
3
Now codified at 12 C.F.R. Part 226, Supp. I,
§ 226.18(c)(1)(iii)-2 (1999).
4
See, e.g., Gibson v. Bob Watson Chevrolet-Geo, Inc., No.
95-C-6661, 1996 WL 316975 (N.D. Ill. June 10, 1996) (holding that
defendant does not violate TILA when it failed to disclose
existence of an upcharge), rev’d, 112 F.3d 283 (7th Cir. 1997);
Taylor v. Quality Hyundai, Inc., 932 F. Supp. 218 (N.D. Ill. 1996)
(same), aff’d in part and rev’d in part, 150 F.3d 689 (7th Cir.
1998); Abercrombie v. William Chevrolet/Geo Inc., No. 95-C-3119,
1996 WL 251435 (N.D. Ill. May 8, 1996) (same); El-Mohammed v. Old
Orchard Chevrolet-Geo, Inc., No. 96-C-3774, 1997 WL 106243 (N.D.
Ill. Feb. 10, 1997) (same); Bambilla v. Evanston Nissan, Inc., No.
94-C-6818, 1996 WL 284954 (N.D. Ill. May 21, 1996) (holding that
defendant violated TILA by failing to note the existence of an
upcharge); Alexander v. Continental Motor Werks, Inc., 933 F. Supp.
715 (N.D. Ill. July 16, 1996) (same).
-8-
The Greens filed their TILA claims against Levis Motors and
Hancock in May 1996.5 The Greens filed their action as a putative
class action, but the district court granted summary judgment to
both Levis Motors and Hancock before reaching a decision as to
class certification. In the claims asserted against Hancock, the
district court issued summary judgment for Hancock based on a
written opinion. The court also granted summary judgment in favor
of Levis Motors based on oral conclusions stated during a hearing
on the motion for summary judgment. In short, the district court
first concluded that Hancock was not liable as an assignee of the
RIC under 15 U.S.C.A. § 1641(a) (which governs assignee liability).
Furthermore, the court also concluded that the FTC clause did not
have any effect in the context of TILA claims asserted against an
assignee. Finally, the court found that the TILA good faith safe
harbor provision, 15 U.S.C.A. § 1640(f), shielded Levis Motors from
liability for the alleged violations. The district court did not,
however, decide whether Levis Motors’s conduct would have
constituted a TILA violation if the safe harbor provision did not
apply.
IV
This court reviews a trial court’s grant of summary judgment
de novo. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.
1998). Summary judgment should be granted when there is no genuine
5
The Greens filed several other claims, but only the TILA
claims are before us on appeal.
-9-
issue as to any material fact and the moving party is entitled to
a judgment as a matter of law. Fed. R. Civ. P. 56(c).
A
Levis Motors argues that, irrespective of whether it has
technically violated the TILA, the good faith safe harbor provision
of that act, 15 U.S.C. § 1640(f), shields it from liability.
Section 1640(f) states:
No provision of this section . . . imposing any liability
shall apply to any act done or omitted in good faith in
conformity with any rule, regulation, or interpretation
thereof by the Board . . ., notwithstanding that after
such act or omission has occurred, such rule, regulation,
interpretation, or approval is amended, rescinded, or
determined by judicial or other authority to be invalid
for any reason.
15 U.S.C.A. § 1640(f) (West 1998). The district court agreed with
Levis Motors, reasoning that the car dealer could not be charged
with a violation of the TILA when such a divisive split occurred in
the (Illinois) district courts after the FRB issued its official
interpretation.
(1)
The Greens first argue that the district court erred because
the FRB did not propose the interpretation that prompted the
disagreement among the courts until after the Greens and Levis
Motors executed the RIC. Citing Fifth Circuit law, the Greens
maintain that the safe harbor provided by § 1640(f) can only shield
creditors who act in conformity with regulations or interpretations
in existence at the time of the challenged disclosure. See Jones
-10-
v. Community Loan & Investment Corp. of Fulton County, 544 F.2d
1228, 1232 (5th Cir. 1977); McGowan v. Credit Ctr. of North
Jackson, Inc., 546 F.2d 73, 77 (5th Cir. 1977). The Greens further
note that Levis Motors does not claim to have relied on any
conflicting authority existing before the Greens entered their RIC.
(2)
Levis Motors makes two main arguments in response to the
Greens. First, Levis Motors argues that it did act in conformity
with the statutory, regulatory, and commentary provisions existing
at the time of the RIC’s execution. Specifically, Levis Motors
maintains that it acted in conformity with model form H-3 and
Official Comments 18(c)-2 and 18(c)-3.6 The district court did
not, however, rely on this particular argument in making its
decision.
In its second argument, Levis Motors puts forth, and attempts
to bolster, the reasoning of the district court. According to that
reasoning, Levis Motors acted in good faith conformity with the
official FRB interpretation issued in April 1996. Although this
interpretation was not adopted until after execution of the Greens
contract, Levis Motors maintains that it must have been acting in
good faith because multiple courts split over how to read that
interpretation: roughly half of the courts ruled that the FRB
interpretation allowed creditors to combine upcharges with amounts
6
See 12 C.F.R. § 226, Supp. I, § 226.18(c)-2,3 (1999).
-11-
paid to third parties without indicating to buyers that they were
doing so; the other half of the courts ruled that the buyers must
be informed. Levis Motors argues that with half of the courts
going one way, and half going the other way, it should be entitled
to the good faith safe harbor. Because the FRB adopted its
interpretation after execution of the Greens’ RIC, Levis Motors
necessarily argues that one need not actually rely upon a
regulatory interpretation in order to act “in good faith in
conformity with” that interpretation.
(3)
Levis Motors cannot overcome a serious obstacle to its good
faith argument: Binding Fifth Circuit precedent holds that a party
cannot act “in good faith in conformity with” a regulation or
interpretation that does not exist at the time of the disputed act
(or omission).7 For example, in Jones, this court dealt with a
TILA claim in which the lenders executed their loans prior to the
date the FRB amended a particular regulation. “Since these two
lenders could not have relied upon the amendatory regulation at the
time their loans were transacted, [this court] held that they were
barred from reliance upon Section 1640(f)’s exculpatory language.”
McGowan, 546 F.2d at 77 (discussing Jones, 544 F.2d at 1231).
7
The relevant Fifth Circuit cases (Jones and McGowan) deal
with FRB regulations. However, Levis Motors has offered no good
reason for treating official FRB interpretations differently from
FRB regulations in this particular context.
-12-
Although Levis Motors holds the view that “Jones and McGowan
are contrary to the plain language of § 1640(f),”8 it does not
provide any compelling argument for why those cases do not bind
this court on the principle that a party cannot base its § 1640(f)
defense on a regulation or interpretation that did not exist at the
time of the transaction.9
In the alternative, Levis Motors argues that it acted in
conformity with the model form (H-3) and FRB commentary existing at
the time the parties executed the RIC. As is clear from the above
description of model form H-3, however, that form does not
indicate--in any way--that creditors can lump in upcharges with
amounts paid to third parties without telling the buyers that they
are doing so. Furthermore, the existing commentary that Levis
Motors cites, 12 C.F.R. Part 226, Supp. I, § 226.18(c)-2,3, does
8
Levis Motors thinks that Jones and McGowan are contrary to
the plain language of § 1640(f) because the words “in conformity
with” should not be read to mean “in reliance upon.” As the cases
constitute precedent binding on our panel, however, this argument
carries no weight.
9
Hancock, which, as an assignee, has an interest in supporting
Levis Motors’s defenses, tries to help with an argument stating
that Jones and McGowan are no longer good law because Congress
overruled those decisions when it simplified the TILA in 1980. We
cannot see that the 1980 amendments changed § 1640(f) in any
relevant respect. Furthermore, Hancock has not pointed to any
relevant change in the regulations interpreting § 1640(f). In
short, Jones and McGowan continue to bind us.
-13-
not aid Levis Motors. For the sake of completeness, we set out the
(minimally) relevant text of those comments:10
18(c) Itemization of amount financed.
***
2. Additional information. Section 226.18(c) establishes
only a minimum standard for the material to be included
in the itemization of the amount financed. Creditors
have considerable flexibility in revising or
supplementing the information listed in § 226.18(c) and
shown in model form H-3, although no changes are
required.
***
3. Amounts appropriate to more than one category. When
an amount may appropriately be placed in any of several
categories and the creditor does not wish to revise the
categories shown in § 226.18(c), the creditor has
considerable flexibility in determining where to show the
amount. For example:
• In a credit sale, the portion of the purchase price
being financed by the creditor may be viewed as either an
amount paid to the consumer or an amount paid on the
consumer’s account.
***
Neither the model form nor these FRB comments could be read as
offsetting the plain language of § 1638(a)(2)(B)(iii) or 12 C.F.R.
§ 226.18(c)(iii). That plain language requires the itemization of
amounts paid to third parties. By lumping the creditors’ own
charges in with the amounts actually paid to third parties, and
failing to denote the conflation, the creditor fails to itemize or
disclose (under any ordinary understanding of those terms) the
10
Levis Motors’s decision not to quote or focus in on any
portion of these commentary paragraphs further highlights the
weakness of the arguments that rely upon them.
-14-
“amount that is or will be paid to third persons.” 15 U.S.C.A.
§ 1638(a)(2)(B)(iii).11
We will reverse the district court’s decision to shield Levis
Motors from TILA liability under § 1640(f). A complete reading of
the statutory text, regulations, and commentary existing at the
time of the relevant transaction mandates the conclusion that Levis
Motors failed to conform in good faith with those authorities.
Furthermore, Levis Motors cannot rely on subsequently issued FRB
interpretations to support its § 1640(f) defense.
B
As noted above, after the district court found the § 1640(f)
defense applicable, it did not go on to decide whether the RIC
actually violated the TILA. Notwithstanding this fact, we have
discretionary authority to decide the issue on this appeal. See
Singleton v. Wulff, 428 U.S. 106, 120-21 (1976) (“The matter of
what questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.”); Creel
v. Johnson, 162 F.3d 385, 390 n.3 (5th Cir. 1998) (resolving an
issue not argued to the district court “because uncertainty exists
with respect to a pure question of law”).
11
To comply with Form H-3, Levis Motors must have listed the
actual amount paid to Louisiana next to the line designated “Amount
Paid to Public Officials For License Fee.” See Gibson, 112 F.3d at
286.
-15-
The issue here is one of pure law: Does a lender violate the
TILA by retaining an upcharge and failing to denote this fact in
its itemization of the amount paid to third parties. Additionally,
and as the next section of our opinion indicates, “the proper
resolution of this question [in the Greens’ favor] is beyond any
doubt.” Murray v. Anthony J. Bertucci Construction Co., 958 F.2d
127, 129 (5th Cir. 1992).
C
The Seventh Circuit has addressed this identical issue in
Gibson, 112 F.3d at 284-86. That court concluded that the
retention of an undisclosed upcharge does violate the TILA. The
reasoning in that opinion is convincing, and we will follow it.
The strongest argument against finding a violation is made by
narrowly focusing on two sentences of the FRB’s official
interpretation (quoted in full ante at 7):
Given the flexibility permitted in meeting the
requirements of the amount financed itemization (see the
commentary to § 226.18(c)), the creditor in such cases
may reflect that the creditor has retained a portion of
the amount paid to others. For example, the creditor
could add to the category “amount paid to others”
language such as “(we may be retaining a portion of this
amount).”
61 Fed. Reg. at 14956 (emphasis added). By focusing on the
permissive words “may” and “could,” some district courts (ruling
before the Seventh Circuit’s opinion in Gibson) read this
interpretation to mean that a creditor could choose to disclose
-16-
neither the actual amount of any upcharge nor the possible
existence of an upcharge.
But read in the context of the interpretation’s entire
paragraph and the accompanying explanation (both are quoted in full
ante at 7-8), it is clear that the inclusion of permissive terms
was not intended to leave open the option of saying absolutely
nothing at all about the existence of an upcharge. Instead, the
FRB undoubtedly meant to give the creditors the option of either
separately itemizing the actual amount paid to third parties or
reporting one lump sum (made up of the actual amount paid to a
third party and the upcharge) with an accompanying notation that
the creditor might have included an upcharge.
This is the way that the Seventh Circuit has read the FRB’s
official interpretation. To read it any other way, the court said,
would be to
read the commentary to say: “You may conceal the fact
that you are pocketing part of the fee that is ostensibly
for a third party, but if you are a commercial saint and
would prefer to tell the truth, you may do that too.” So
interpreted, however, the commentary not only would be
preposterous; it would contradict the statute. The only
sensible reading of the commentary is as authorizing the
dealer to disclose only the fact that he is retaining a
portion of the charge, rather than the exact amount of
the retention. Even this is a considerable stretch of
the statute; and it is as far as, if not farther than,
the statute will stretch.
Gibson, 112 F.3d at 285-86.
-17-
In this case, Levis Motors neither itemized the upcharge
separately nor indicated that an upcharge might be included. This
failure constitutes a clear violation of the Truth In Lending Act.
D
We now consider the liability of Hancock as an assignee.
Section 1641(a) governs the liability of assignees for the TILA
violations of their assignors. That provision states, in relevant
part:
Except as otherwise specifically provided in this
subchapter, any civil action for a violation of this
subchapter . . . which may be brought against a creditor
may be maintained against any assignee of such creditor
only if the violation for which such action or proceeding
is brought is apparent on the face of the disclosure
statement, except where the assignment was involuntary.
For the purpose of this section, a violation apparent on
the face of the disclosure statement includes, but is not
limited to (1) a disclosure which can be determined to be
incomplete or inaccurate from the face of the disclosure
statement or other documents assigned . . .
15 U.S.C.A. § 1641(a) (West 1998).
The Greens argue that this provision does not protect Hancock
for two primary reasons. First the Greens argue that Levis
Motors’s TILA violation was apparent on the face of the RIC.
Second, the Greens point to the FTC clause,12 contained within the
12
We repeat the clause for convenience:
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO
ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT
AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT
HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER
BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR
HEREUNDER.
-18-
RIC, and argue that that provision makes Hancock liable to the same
extent as Levis Motors, notwithstanding § 1641(a). We discuss
these arguments in turn.
1
In the Greens’ first argument, they note that Hancock is an
experienced player in the credit industry; Hancock regularly
purchases RICs from automobile dealers. Thus, according to the
Greens, Hancock must have known, or at least should have known,
that Levis Motors included an upcharge in the amount reported as
“Amount Paid to Public Officials For License Fee.” Furthermore,
the Greens argue, the existence of this upcharge was apparent on
the face of the RIC because Hancock could have looked at license
fee tables that list the actual amount Louisiana would have charged
the Greens. After noting this amount, the Greens continue, Hancock
should have recognized the discrepancy with the amount listed in
the Greens’ RIC, thereby being alerted of the TILA violation.
According to the Greens, the ready access to the tables makes the
alleged TILA violation apparent on the face of the RIC.
In support of its argument, the Greens contrast their own case
with Taylor v. Quality Hyundai, Inc., 150 F.3d 689 (7th Cir. 1998).
In Taylor, the automobile dealer’s RIC listed an amount paid to a
third party for extended warranty coverage. This creditor also
included an upcharge, which the Seventh Circuit concluded was not
apparent on the face of the RIC. Id. at 694-95. The Greens argue
that their case is different because the actual amount paid to the
-19-
third party (Louisiana) is readily available through public
documents. In contrast, the actual amount paid to third parties in
Taylor (the party offering the extended warranty) may not have been
as readily available to the assignee.
The district court disagreed with the Greens. That court held
that the violation alleged by the Greens was not apparent on the
face of the RIC. In following several other district court
decisions, the district court stated that § 1641(a) establishes an
objective test to determine the liability of assignees.13 Thus, the
court refused to consider Hancock’s subjective experience and also
refused to read § 1641(a) as requiring Hancock to look to the
Louisiana tables.
The district court was correct. The only “assigned” document
that the Greens point to is the RIC. Although Louisiana’s fee
tables may be available to the public, those tables do not
constitute, according to § 1641(a)’s text, “documents assigned” to
Hancock. A statement from the Seventh Circuit’s Taylor opinion
applies in this case as well:
In effect, the rule for which the plaintiffs are arguing
would impose a duty of inquiry on financial institutions
that serve as assignees. Yet this is the very kind of
duty that the statute precludes, by limiting the required
13
See, e.g., Alexander v. Continental Motor Works, Inc., No.
97 C 5828, 1996 WL 79403, at *6 (N.D. Ill. Feb. 16, 1996) (“In
general, courts addressing the issue of TILA assignee liability
have found that § 1641(a) limits liability when there is no
indication from the disclosure documents that liability may
arise.”).
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inquiry to defects that can be ascertained from the face
of the documents themselves.
Taylor, 150 F.3d at 694. The Eleventh Circuit has since agreed
with Taylor and stated that “the plain language of the statute
forbids us to [resort to evidence or documents extraneous to the
disclosure statement].” Ellis v. General Motors Acceptance Corp.,
160 F.3d 703, 709 (11th Cir. 1998). The fact that Taylor and
Ellis involved payments to third parties for extended warranty
services--as opposed to state licensing fees--is a distinction
that has no effect.
The two circuits that have addressed this issue and a common
sense reading of § 1641(a) all point towards the conclusion that
the alleged TILA violations were not apparent on the face of the
Greens’ contract. Thus, under § 1641(a), Hancock is not liable
for Levis Motors’s violations.
2
Finally, the Greens invoke the FTC clause (quoted ante at
footnote 12) of their RIC to argue that Hancock remains liable for
Levis Motors’s TILA violations regardless of § 1641(a)’s
limitations. Because this clause is in a contract between two
parties, the Greens argue, the court should give it its full
effect. This argument becomes problematic, however, because
giving this clause the full effect of its language would in every
consumer credit contract negate the protections that § 1641(a)
provides for the assignee; this is so because the FTC requires
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creditors to insert the FTC clause in all consumer credit
contracts. See 16 C.F.R. § 433.2 (1999). This situation leaves
our court with two options: (1) apply the clause so as to negate
the effect of TILA’s specific statutory provision; or (2) conclude
that § 1641(a) overrides a clause (required by another agency) in
a private contract. Both the Seventh and Eleventh Circuits have
addressed this problem and both courts had little problem
concluding that § 1641(a) overrides the contract clause. Taylor,
150 F.3d at 692-94; Ellis, 160 F.3d at 708-09.
The Taylor court noted that overriding the FTC clause in this
context does not nullify it entirely. Taylor, 150 F.3d at 693.
The clause still serves a very useful purpose for the plaintiffs.
For example, “[i]f the cars they purchase turn out to be lemons
and they assert a right to withhold payment against the sellers,
they may also assert the same right against the assignees.” Id.
Thus, § 1641(a) limits assignee liability on only one set of
claims (i.e., the specified TILA claims). The Taylor court
further reasoned that the FTC clause, “even though contained
within the contract, was not the subject of bargaining between the
parties, and indeed could not have been. It is part of the
contract by force of law, and it must be read in light of other
laws that modify its reach.” Id.14
14
The Ellis court agreed with the Taylor court on these points
and reiterated its reasoning. Ellis, 160 F.3d at 709.
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The Greens respond to this by pointing us to 15 U.S.C.
§ 1610(d):
Except as specified in sections 1635, 1640, and 1666e of
this title, this subchapter and the regulations issued
thereunder do not effect the validity or enforceability
of any contract or obligation under State or Federal law.
The Greens argue that to deny the FTC clause’s application to TILA
claims would be to invalidate (at least in part) the retail
installment contract. Section 1610(d), according to the Greens,
disclaims any intent to modify the reach of the included FTC
clause.
To read § 1610(d) this way, however, would still produce an
absurd result: the protections of § 1641(a) would never have any
effect on consumer credit contracts. We fully recognize that the
FTC’s regulations do not neatly complement the TILA in this case.
Yet, faced with the choice presented, we agree with the conclusion
reached by the Taylor and Ellis courts, thereby choosing the
lesser of two imperfect options.
VI
In sum, we have concluded that the good faith safe harbor
provision of the TILA does not shield Levis Motors from liability
in this case. Furthermore, Levis Motors’s RIC did violate the
TILA. Therefore, we will remand for further proceedings with
regard to Levis Motors. Finally, we will affirm the district
court’s grant of summary judgment in favor of Hancock. We will
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therefore remand for further proceedings not inconsistent with
this opinion.
REVERSED in part, AFFIRMED in part, and REMANDED.
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