*1 “granted and costs were attorneys fees Zalewski, BAKER and Scott Wanda $2,087.50.” April On and others behalf of themselves notice of filed a plaintiffs similarly situated, Plaintiffs-Appel judge magistrate of the this order lants, appel- their payment of timely made
and
late fee. CHEVROLET, INC., a Michi 03-30412, SUNNY appeal, No. dismiss
We Wayland gan corporation Chev jurisdiction. The dis- d/b/a appellate for lack of rolet, Defendant-Appellee. no docket sheet indicates trict court’s to the objection by plaintiffs made was 02-1381. No. judge’s order magistrate entry of Appeals, Court of United States judge has not reviewed the district Sixth Circuit. magistrate judge’s order. considered by the any аpproval In the absence Argued: Sept. by the order judge entry district Nov. Decided Filed: case, judge in such magistrate a final decision does not constitute order only circumstance court. The district judge magistrate order of a directly to this Court appealed (3). 636(c)(1) in 28 U.S.C.
described re- parties find no consent of the
We han- for the final
quired by these statutes any mat- magistrate judge of
dling by the fact, grant
ter this case. defendants
summary judgment favor of by judge made district
was relating kind
contains no reference of attorneys fees defendant any claim ap- therefore dismiss
Womack. We jurisdiction.
peal appellate for lack of
DISMISSED.
John E. Anding (argued briefed), Drew, Cooper Anding, C. Phillip Rogers & (briefed), MI, Rapids, Grand Appel- lants. Saylor briefed),
Daniel (argued S. Garan, Lucow, Miller, PC, Detroit, MI, (briefed), Garan, D. Lucow, Michael Wade Miller, PC, MI, Rapids, Grand Appel- lee. KENNEDY, GUY,
Before: DAUGHTREY, Judges. Circuit KENNEDY, J., opinion delivered the GUY, JR., the court. RALPH B. (pp. J. 871-73), separate delivered concurring a J., opinion, DAUGHTREY, in which joined.
OPINION KENNEDY, Judge. Circuit case presents from the district court’s granting summary order judgment of Defendant-Appellee favor Sunny Plaintiffs-Appellants Chevrolet. argue Baker and Zalewski that the district erred court when it determined even if Defendant had violated 15 U.S.C. 1638(b)(1), Defendant was liable for statutory damages. We AFFIRM.
BACKGROUND 28, 2000, On December Plaintiff Baker signed a retail installment sales contract (“RISC”) to a purchase pos- car and took session the vehicle on that date. Al- though she copy asked for a of the con- tract, request. Defendant refused the On January 2001, citing inability to obtain RISC,1 financing under the Defendant re- quested that Plaintiffs return deal- adding ership re-execute deal buyer. dealership, latter as a At the De- they fendant informed Plaintiffs sign would each have a contract. second transaction, arise, however, typical party. RISC a dealer sells a third from Problems promising expected vehicle to a customer a certain if the dealer is unable obtain the type financing hopes financing. to obtain OF copy STANDARD REVIEW being asked again, despite Once contract, refused Defendant signed grant court’s We review district either provide Terry novo. Barr summary judgment de *3 finally copy received a Plaintiffs contract. Co., v. All-Lock 96 F.3d Agency, Sаles Inc. three approximately contract of the second Cir.1996). (6th 174, deciding a 178 29, later, January 2001. around weeks motion, judgment court can- summary copy never received Plaintiff Baker evidence, judge the credibili- weigh signed. It is that she first contract witnesses, truth of ty of or determine the given the that Plaintiffs were undisputed Liberty v. the matter asserted. Anderson prior to for review RISC document actual 242, 255, 106 S.Ct. 477 U.S. Lobby, RISC accu- it and that actual signing (1986). must, 2505, 202 We 91 L.Ed.2d all of the transactions’ rately disclosed however, view the evidence and draw credit terms. “justifiable light most inferences” action lawsuit for Plaintiffs filed class Id. Sum- favorable the non-movant. Landing Act Truth violations judgment apprоpriate where mary (“TILA”) Z, Regulation underlying mate- genuine “there is no issue repeatedly Defendant failed alleging that moving is enti- party rial fact and copy of con- give the consumer “a of law.” judgment tled to a as matter purchase tract connection with the [in 56(c). Fed.R.Civ.P. mere existence “[T]he keep prior to of motor vehicle] finance alleged between dispute factual some of the transaction.” First consummation defeat an parties will not otherwise at 9. Plain- Compl. Am. Class Action J.A. summary supported motion for properly however, tiffs, allege any do not actual Anderson, 477 247- ...” at judgment U.S. they damages, nor do claim 48, (emphasis original). 2505 106 S.Ct. they that were made before disclosures are re- questions Mixed of law fact Plain- signed the RISC were inaccurate. Mehra, novo. v. 186 viewed de Williams statutory damages un- sued tiffs (en banc). (6th Cir.1999) court, § 1640. district F.3d 689 der 15 U.S.C. February per order dated denied class
the motion for certification because ANALYSIS not typical pro- were of their Plaintiffs Congress TILA in enacted 1968 the class defini- posed class because promoting purpose with the broad inadequate. The district court tion was by assuring mean informed use credit 8, 2002, also, per grant- order dated March ingful credit to con disclosure of terms summary judg- motion ed Defendant’s generally, See 15 U.S.C. sumеrs. complaint in ment and dismissed Plaintiffs’ 1601(a); Mil Ford Motor Credit Co. v. entirety on the that Defendant’s its basis hollin, 555, 559, 444 U.S. S.Ct. of the provide copies refusal disclo- (1980); Begala L.Ed.2d v. Ohio Nat’l sures, “seemingly inappropriate,” while (6th Cir.1999). Ass’n, give could not rise to TILA dam- has This Court held statute must ages. appealed Plaintiffs orders to liberally considered consumer’s sides, however, only this Court. Both Ass’n, favor. Jones TransOhio Sav. statutory damages. briefed the issue Cir.1984). The sec F.2d Plaintiffs for reconsideration of the asked principally of TILA involved here are ruling tions pending class certification reversal 1638(a)2 1638(b),3 §§ which ruling. U.S.C. quirements re- of the creditor’s disclosures. contains substantive disclo- ther specific рrovide creditors to make held that failure to Plaintiffs 1640(a),4 sures, pro- and 15 U.S.C. with a their contracts signing vides consumers with a cause of action for did not entitle Plaintiffs dam- certain of the act. Also of rele- violations ages violations Z, Regulation vance on 1638(a)(3)-(a)(6),1638(a)(9).7 §§ 226.1, seq., a regulation pro- et not entitled to Statuto- mulgated by the Federal Reserve Board to ry Damages for Violations of 15 implement prescribes TILA. Z the form which a creditor must disclose *4 pursuant § to
the items 1638.5 U.S.C. argue Plaintiffs that Defendant violated the form and assumed, timing requirements The district court so of without 1638(b)(1) § TILA, of holding, pro- that Defendant violated the related 1638(b)(1).6 Regulation § Regulation It visions of Z. Z pro- then held that vides, in damages part, were not this relevant that available for viola- creditor “[t]he Sunny Chevrolet, shall tion. Baker v. the required by No. make disclosures this 1:01-CV-109, (W.D.Mich. slip op. subpart clearly and conspicuously in writ- 8, 2002). March The Court ing, District fur- in a form that may consumer § § 3. 15 U.S.C. contains form and 15 U.S.C. § timing of the disclosures. provides, Z in part, relevant "[t]he creditor shall make the re- disclosures provides: 4. The section quired by subpart clearly conspicu- this Except provided as otherwise in this sec- ously writing, in a form that the consumer tion, any comply who fails creditor to with may keep.” 226.17(a)(1). § 12 C.F.R. It fur- any requirement imposed part this under provides ther required that creditors are to respect any person ... to liable to make the mandated disclosures con- "before person equal such in an amount to the sum summation of the transaction." 12 C.F.R. of— 226.17(b). (1) any damage by actual sustained such failure; person aas result of the provides: 6. The section (2)(A)(I) in the case of an individual ac- Except provided part, as otherwise in this tion twice the amount of finance required the disclosures under subsection charge in connection with the transaction (a) be of this section shall made before the (B) action, ... in the of a case class such Except credit is extended. for disclosures allow, may exceрt the court (a)(1) required under subsection of this sec- that as to each member of the class no tion, all disclosures under subsec- recovery applicable, minimum shall be (a) conspicu- ... tion of this section shall be recovery subpar- total under this terms, data, ously segregated from other agraph class action series of or provided or information connection with arising class actions out same fail- transaction, including any a computations comply by ure same creditor shall or itemization. $500,000 not more than the lesser of 1638(b)(1). 15 U.S.C. per or 1 centum of the net worth of the creditor ... require 7. These section disclosure of the fi- 1638(a)(3), charge, In connection disclosures referred nance 15 U.S.C. an- title, rate, 1638(a)(4), section of a percentage creditor nual 15 U.S.C. liability 1638(a)(5), payments, have a shall determined total of (2) paragraph only failing comply periodic for payments, and amount of requirements 1638(a)(6), with the of section of existence of (2) (insofar interest, 1638(a)(9). paragraph or security this title of as it requires a provide disclosure of the "amount fi- Plaintiffs claimed that failure them nanced”), (3), (4), (5), (6), (9) of or section with a these disclosures constituted complete of this title failure disclose. 1638(b). 226.17(a)(1). Circuit Defen- tion of Seventh keep.” should that: Court found argues first dant deciding, as the Dis- did available, without Statutory assume are this fi- 1638(b)(1) Court, that a violation failing trict says, “only nal sentence argues then Defendant occurred. of section comply with the recoverable (2) paragraph title or of 1638(b)(1) because consum- (insofar violations requires disclosure aggrieved by disclosure violations ers (6), financed’), (3), (4), (5), or ‘amount seek title, or for” of this involving those case violations presented these other situations (9). (3)-(6), 1638(a)(2)(some), §§ have itali- “Only,” cases. word we against plaintiffs, for cized is conclusive above, court the district As noted statutory damages to closed it confines summary purposes assumed emphasize typefаce list. Failure to motion violation judgment charge” percent- and “annual of “finance urge us place. took *5 1632(a); § omission of age rate” violates opinion beyond the district court’s go descriptive explanations violates actually occur. that did and find a violation 1638(a)(8); § extra mat- appearance of con refrain from typically This Court will in the federal box violates ter by the sidering passed upon not issues 1638(b)(1). of § None these subsections See, Blue & Blue e.g., courts. Cross lower eligible is on the list of violations and Mut. v. Blue Cross Shield Ohio of statutory damages. (6th Ass’n, 318, 110 F.3d 335 Blue Shield Inc., Cir.1997). restraint, however, v. Sunny is sim Baker Chevrolet No. Brown, discretion, 1:01-CV-109, at 4 sliр op. (quoting a matter of the Courts ply Cir.2000)). 987, issues 991 The remain free to resolve such Appeals noted a number is doubt” District Court also beyond if “proper resolution “ Circuit might re district courts outside Seventh injustice “where otherwise or ” Id. the Brown at Singleton Wulff, 428 have followed decision. (citing sult.’ v. L.Ed.2d 4-5. 96 S.Ct. 49 U.S. (1976)). on the dis 826 Defendant relies Plaintiffs, exclusively on relying almost deny in its opinion
trict court’s discussion Oldsmobile, Inc., Baker Lozada Dale argue proper class certification to ing (W.D.Mich.2001),argue F.Supp.2d 145 878 Baker v. beyond is not doubt. resolution the district the Seventh Circuit and Chevrolet, 1:01-CV-109, slip Sunny No. 1640(a) § their re- court misread to reach (W.D.Mieh. 2002) (“Be at 5 Feb. op. opinion spective holdings. Lozada fully not cause the facts have been devel intricate very argument makes oped, the Court cannot determine whether 1640(a) discussion occurred.”) do a violation has 1638(b)(1) apply does at simply not appellate not address this words, limitation on claims. other factual brief. We decline resolve the damages in availability occurred question whether violation applies only to “disclo- 1638 violations assume, and as did the district instead 1638(b)(1) sures” and court, that a violation did occur. merely a “form not a but is is “disclosure” court, heavily requirement. on a of disclosure” relying The district and Lozada, decision, (noting F.Supp.2d Seventh Circuit found that statu- is with the tory reading consistent not available for viola- “[s]uch are types other violations described yet part and of the disclosure ”). 1638(a). enumeration.’ See also Daenzer v. requirements §of Moreover, Ford, Wayland F.Supp.2d no basis exists for considering a disclo- (W.D.Mich. 2002) (dis Mar.15, 1036-37 sure if it made is not made in accor- cussing both Brown and hozada and dance with hozada). reading in adopting the But see 1638(b)(1). Since ex- Candy Ford-Mercury, Kilbourn v. pressly provides the form and time in (W.D.Mich. Mar.11, F.R.D. disclosures under must 2002) (discussing Broum hozada made, § be disclosures Broum). adopting reading Ac be said to made unless and until they cording position, to this is not made compliance with mentionеd in the discussion of limitation 1638(b)(1). 1638(b), by Section saying array thus a full dam made, when how a is disclosure ages available its violation. The part becomes the definition of what however, problem interpretation, with this constitutes ‘disclosure’ TILA. that, alone, standing the “form and tim hozada, F.Supp.2d at 889. substance, ing” requirement has no it only Defendant, Broum, relying on argues makes sense if it is combined with substan reading that such a of TILA creates a back For tive disclosures exam door theory that the alleged failure to applies ple, to disclosures re timely make written disclosures is not a (a) (b) ferred to in subsections disclosure at all. Defendant’s reliance on section 1637. Each subsection of *6 Broum, Brown, is misplaced. however In “timing” contains its own requirement.8 It the provided defendant plaintiff the with a untimely would therefore seem disclo timely problem written disclosure. The in 1637(a) (b) § sure of in items and would be Brown was that there were two minor subject § to statutory damages. 1640(a). errors the actual disclosure which re- § reject We therefore 1638(a)(8) § sulted in of violations reading of the statute. 1632(a), § an neither which is enumerat- Plaintiffs, hozada, relying again once on 1640(a). § ed violation contained in a following make second argument Broum, 202 at F.3d 990. The Brown court alternative: rejected then theory a back door that “in- However, if a fаilure to deliver disclo- formation has been ‘disclosed’ in compli- 1638(b) sures under is considered a ance with if the TILA “disclosure referred [ ] to Regulation and all of Z have been fol- 1638” meaning § within the then lowed.” Id. at 991. The Broum court the failure to deliver disclosures in the on explain went to 1638(b)(1) provided by § manner must Accepting argument destroy would failure be considered to disclose the re- 1640(a). quired point terms under What sense The re- quirements may not would it make to omit be (a)(2) (in considered purposes 1638(a)(1), (a)(7), ‘disclosures’ for part), (a)(8), See, e.g., 1637(a) ("Before open- plan obligor, shall transmit each ing any open account under an end consumer billing сycle the end which there is an plan, credit the creditor shall disclose to the ..., outstanding balance in that account person to whom credit is extended each of the setting following statement forth each of ...”) added); following (emphasis items applicable.”) (emphasis items to extent ("The creditor ac- added). open count under an end consumer credit dismissing (a)(ll), (a)(12), ly Id. at 489. After (a)(10), and all of raised.” (d) case, in a 1638(b), (c), engaged completely the candi- the court from they if unnecessary about the merits of dicta dates the back door on the through argument single with a reference plaintiff’s came shortcomings in- theory that аll §to and without discussion formal items that are the disclosures courts’ therefore find other decisions. We fect list. on the holding entirely unpersuasive. its added). Brown, 991 (emphasis 202 F.8d at illustrates, foregoing discussion As it, the Brown court On facts before readings of we are therefore left with two theory. rejected the back door properly statute, support of which find clearly of this case are distin- facts caselaw neither of which the relevant however, not since Plaintiffs did guishable, clearly correct on its face. appears be of the RISC. Plain- timely receive a arguments can best be summa- The two (3), 1638(a)(2), allege tiffs therefore rized as follоws. (4), (5), (6),(9) disclo- were violated because First, '§ form and required under those subsections sures apply be read to to each disclosures should properly made. were not (i.e. individually subsection other cases reliance two Defendant’s 1638(a)(3) a disclo is violated whenever Plaintiffs’ like argue against position prior consummation of sure is made Ray misplaced. wise Collins Skill it is not made in the sale whenever Truck, Inc., 2001 WL man Olds-GMC in a form that a writing consumer (S.D.Ind. Dec.3, 2001), the court It read as inde keep). should an rejected similar the one pendent disclosure violation. This inter However, by here Plaintiffs.9 advanced pretation language supported rejеct court read Collins Brown Z. 12 structure alleged to make argument that “the failure 226.17, which is the first section under anot disclo timely written disclosures was Credit,” provides “Subpart C-Closed-End Collins, 1711466,at sure at all.” 2001 WL *7 shall make the “[t]he that creditor disclo above, that explained *3. As we believe required by subpart clearly sures misreading of this is a Brown. In the writing, in in a form that the conspicuously case, RRR, LLC, Graham second may keep.” consumer C.F.R. (E.D.Va. 483, 485, May F.Supp.2d 226.17(a)(1) added). § (emphasis Section 2002), a rejected the court also similar 1638, titled “Transactions other than under argument by a plaintiff advanced who was open plan,” end is a deal credit sign in allegedly asked a blank retail transactions, ing with “closed-end credit” sale There are sever stallment contract.10 the in such as one this case. C.F.R. al problems relying Graham. 226.2(a)(10) (defining § “closed-end cred First, dispute there was factual about 1638(a) it”). Requirements are ex plaintiff signed whether the a blank RISC. 226.18, § Second, plained ap in 12 actually n. court C.F.R. at 489 3. pears same C Subpart dismissed the entire as “untime- within the as does only Apparently, in was 10. there were two RISCs involved The difference facts that First interest plaintiff here. one had rate copy 12.5% in Collins never asked for plaintiff provided was of it. RISC, in this case did. whereas Plaintiffs supposed one was to be filled out if Second diffеrence, however, opinion, our The in the defendant obtained a lower interest rate. insignificant. dispute was a as to whether the There factual signed plaintiff a blank RISC. (b) tory general damages; disclosure disclosure of the (b). 226.17(a) 1638(a) regula- § 12 C.F.R. The enumerated items in in but NOT demand that appears required by tion therefore ev- manner 1638(b)(1), ery pro- “closed-end credit” disclosure be subject which is not See, in e.g., this manner. Polk v. the statutory damages. vided theory still Auto, Inc., recognizes Crown that proper manner of mak- Cir.2000) curiam) (“However, (per ing on bal- disclosures is in in writing, plain we believe form meaning ance that the may keep. the consumer It also, regulation however, must be understood to be recognizes that in a situa- written speci- bar, disclosure in the tion like the case at where Plaintiffs form (a) subpart provided fied in must be the were clearly prejudiced by the untime- (cid:127) specified subpart consumer the time ly RISC,11 delivery of the the failure (b). is, That Crown Auto was to deliver the written disclosures in the form make the Polk in writing, disclosures to may keep consumer is actionable keep, the form that he could before con- only if the can consumer show actual dam- transaction.”) (emphasis summation ages. original). Finally, in the does adopt We now expressly in- second not contain a in a form “writing the con- terpretation only because it is the way to is, keep” requirement. sumer There reconcile the imposition damages under thus, no reason to conclude the viola- with the excuse of certain viola- 1638(b) tion of 226.17 is a 1640(b).12 tions under
violation and not a violation. 1640(b) Section forecloses Plain- Second, is a separate re any damages tiffs’ recover quirement tangentially relates this case. underlying substantive disclosure re quirements of Under this problem resolving theo complicat- ry, question violation is not one of ed construction 1640(b). enumerated violations that warrant a stat provisions aided Nei- utory theory party award. This thus ther briеfed this issue on this appeal (a) types Nevertheless, two creates violations: com or before the court. district plete independent non-disclosure of enumerated items our review the statute 1638(a), § punishable by which is statu- leads plain us to the conclusion that the *8 argument, oral Congress simultaneously thought At Plaintiffs’ counsel con- assume that (1) going shop ceded that not timing Plaintiffs were to that the the disclosures was important the Defendant’s but enough offer around instead in- statutory to warrant dam complete purchase. (2) ages tended the unimportant under enough delay performance by to excuse a below, 1640(b) explained prоvides sixty days 12. As as much as the absence of actual 1640(b). that violations that are corrected within under Such a contradic days by subject tory reading goes against lender are not to statu- the basic canons See, tory damages, assuming e.g., certain conditions construction. U.S. v. Bran 1640(b). son, (6th Cir.1994) met. provi- (noting 21 F.3d Congress leads us sion to conclude that was that statutes should not read in manner accuracy they meaningless, more concerned with that dis- renders them that (by imposing actual closures and statuto- must be read a whole and construed effect, ry damages) give they operative then with the the dis- each word and that (by imposing only damages). interpreted closures actual should be to avoid untenable dis weWere to read these subsections two in the tinctions and unreasonable results whenever Plaintiffs, (citations omitted). urged by possible) we would manner have to general in the discussion of it very sparse bars
meaning The has considered re Allied Su caselaw. Third Circuit Plaintiffs. In recovery for solely Inc., applies that 725-26 951 F.2d permarkets, mathematical, errors, Cir.1991) although in (recognizing that not informational not review disclosures. provide courts do as failure to appellate such general Chevrolet, Inc., ap for the first time A.Z. 619 F.2d raised Thomka v. questions (3rd Cir.1980). so appropriate to do when the The court it is 251-52 peal, one). legal also Wash See question explain on to went Elec. Light Virginia v. & Co. ington Gas in a case as this would be Notice such (4th Cir.1971) Co., 248, 250 Power ineffectual, no lower since there are (“if the correct necessary to reach deemed figures the reme- mathematical on which sponte result, appellate court sua It cost calculated. dial would be to the dis points presented not consider exemp- possible providing therefore not raised on court and even trict 1640(b) in case tion under Section like v. Continen party.”) (citing either U.S. provide an incentive for lend- this would 457, 470, Co., tal U.S. Can delay sending ers to disсlosure forms (1964)). 1738, 12L.Ed.2d 953 S.Ct. agreement until after the is reached. liability” is a “civil general Section Circuit, however, Id. at 252. Third (a) in the In TILA. subsection section ques- this expressly chose not to resolve provides for either actual and/or its case tion because facts of indicated TILA for various violations. actually that the defendant never notified (1) (b) (c) cor- provide Subsections plaintiff there was disclosure errors, 1640(b), rection of error. See also Molenbeek West viola- the treatment of unintentional Outlet, Michigan Auto & Truck errors, 15 U.S.C. tions and bona fide (ex- (W.D.Mich.2001) at *4 WL 1640(c). specifically, section More 1640(b) applies doubt that to non- pressing 1640(b)providеs: written, errors but never- non-calculation liability ... under A creditor has no concluding simply theless defense comply failure apply defendant does because the did any requirement imposed under notify plaintiff the statute re- ..., sixty days if part within after observations, quires). making its error, prior discovering an ... and legisla- heavily Third Circuit relied on the the institution of an action history tive as summarized Ratner v. notice receipt section or of written Bank, F.Supp. Chemical obligor, from the creditor the error (S.D.N.Y.1971)(deciding n. 17 case person ... notifies concerned 1640(c) only). dealing with a defense adjustments makes error and whatever Thomka and Ratner courts observed that necessary appropriate in the account are original permitted draft of the Act “[t]he person to assure will not be errors, in response no but to fears that pay an amount excess of simple clerical in mathematical mistakes *9 disclosed, charge or the dol- actually charge calculations of the lease financial equivalent percentage lar the annual percentage and annual rate would create disclosed, actually rate is low- whichever liability unavoidable affirmative er. 1640(c), as well Sec- defenses Section 1640(b) Thomka, 1640(b). tion were added.” 619 applicability 15 U.S.C. Ratnеr, F.2d at 250-51. also 329 impression this is a matter of first See section problem 17. The appears F.Supp. in this Circuit to at 280-81 and n. and there be
871 legislative GUY, JR., interpretation with this of the RALPH B. Circuit Judge, 1640(b) 1640(c) history is that ex- concurring. “clerical, calculation,
plicitly
deals
I concur in the result
sepa-
and write
programming,
malfunction and
computer
rately
clarify
to further
reasons
1640(c).
errors.” 15
printing
and
U.S.C.
affirming the decision to grant summary
the Third
and the
Therefore
Circuit’s
judgment
Sunny
to
Chevrolet in this action
reading
District of
Southern
New York’s
for statutory
In
the Truth
legislative history
of the
render
would
(TILA),
Act
Lending
1640(b)
See,
TRW,
meaningless.
e.g.,
1640(a)(2).
Like the district
I
judge,
Andrews,
19,
Inc.
534
v.
U.S.
122 S.Ct.
assume, arguendo,
would
violation of
(“it
441,
(2001)
449,
CONCLUSION la v. PNC Ohio Nat’l (6th Cir.1998). F.3d called When sum, we conclude that Defendant’s statute, upon interpret re we must timely provide failure to with a “ view particular statutory language ‘the copy of RISC does not entitle Plaintiffs to issue, as the language design as well any statutory damages on the alternative as a (1) the statute whole.’” Walker grounds violation (6th Cir.2001) Bain, subject (citation omitted), denied, cert. 535 U.S. complied Defendant *10 provisions 1095, 2291, for the correction of errors. 122 1050 S.Ct. 152 L.Ed.2d (2) ..., requirements paragraph of ...
(2002). rely on the literal We (9) (5), (3), (4), (6), of or section it would “lead absurd when language 1638(a) title, for failing of this or is incon- interpretation which or an results requirements un- comply with disclosure Congress.” Id. the intent of sistent with any term which the der State law for at 667. Board has determined be substantial- required for governs TILA disclosures ly meaning the same in under section (like automo- transactions ended” “closed 1610(a)(2) any of title as of the this disclo- loans), dictating the substantive bile any in of para- terms referred to those in 15 U.S.C. that must be made sures title. graphs section this 1638(a), applicable timing form and added). (emphasis 1638(b)(1), U.S.C. for violations of available majority addressing of decisions 1640(a).1 in 15 U.S.C. provisions those have presented adopted in this case issue state portions of The critical by interpretation articulated the Sev follows: Payday enth Circuit Brown Check Inc., Advance, Cir.), provided in
Except
for the list of subsections
the final sen-
a complete
constitutes
failure
above,
court
quoted
tence
found the
make
of the substantive disclosures
list
positive
was “not a
exclusive enu-
required by § 1638(a) including those for
—
meration
provisions
statutory-
which
statutory damages
are expressly
rather,
but
provided,”
are
“re-
available.
argument
persuade
This
fails to
description
exceptions.”
verse
As a
as would turn the
congressional
stated
result,
the district court concluded that
on
intent
its head. As the Brown court
violators of
would remain sub-
aptly reasoned:
ject
because
[Accepting
would destroy
exception
is not enumerated for
1640(a).
point
What sense
from
general
rule.
would
it make
omit
§of
While the structure
makes
(a)(2) (in
1638(a)(1),
part), (a)(7), (a)(8),
interpretation plausible,
the Lozada
(a)(10),
(a)(ll),
(a)(12), and all of
language
design
provisions
these
(d)
1638(b), (c),
from the candi-
convince me that the
Circuit and a
Seventh
dates for statutory damages if they
majority
addressing
of district courts
in through
came
back
door on the
issue
concluding
are correct in
that statu-
theory that all
shortcomings
formal
in-
tory damages are not available for viola-
fect the
disclosures of
items that are
1638(b)(1).
tion of
The limitation of the
on the
Congress
list?
included some
final
quoted
sentence of
above
others; plaintiffs
and excluded
want us
explicitly applies “in connection with the
to turn
inclusion,
this into universal
disclosures referred to
1638”—not
which would rewrite rather than inter-
just §
also further states that
—it
1640(a).
pret
statutory damages
available
Kilboum,
history concerning addition of the final
sentence, which indicates that the amend-
ments were to limit a intended creditor’s
liability penalties “closed Billy Dewayne NEWTON, ended” transactions to disclosures of “the Petitioner-Appellee, financed, charge, the finance total payments, annual percentage rate, number, amount and due dates of George MILLION, Warden, R. taken, and,
payments,
security
interest
Respondent-Appellant.
applicable,
where
right
the consumer’s
No. 01-6116.
Kilboum,
rescission.”
sures to the sections Decided and Nov. Filed: enumerated in theory, plaintiffs
As an alternative con-
tend that are available comply
because the failure to with the