*1 be, my law, It view of the may prevent
the onset of disease the trial does, But
of an accused. death also as does incapacity.
mental Both the disease prosecution
the frustration of are to be
regretted, accepted. but must be
I do suggest not intend to that a defend- may feign
ant voluntarily illness—or even
contract an escape prosecution. illness —to
The court may inquire into the bona fides
of the situation. Absence for such causes
would be and would constitute a right
waiver of present. defendant’s to be question
No has been raised as to the
bona fide existence physical of Dasher’s in-
firmity. grant I would affirm the corpus.
writ of habeas Plaintiff-Appellant,
Joyce STEWART, COMPANY, CREDIT
FORD MOTOR
Defendant-Appellee.
No. 81-7509. Appeals, Court of
United States
Eleventh Circuit.
Sept.
Rehearing and Rehearing En Banc 7, 1982.
Denied Dec. surreptitiously acquittal by jurors conducted trial in his absence who did not see him than not, apprehend, by proof could I be validated those who did. the defendant stood a better chance of *2 Magistrate’s
the the recommendation summary for judgment motion defend- of ant-appellee Ford Motor (“FMCC”) granted plaintiff-appel- motion for summary judgment lant’s We denied. affirm.
The action was brought under the Con- sumer (hereinafter Credit Protection Act “Act”), seq,, 15 U.S.C. 1601 et §§ as amend- ed, statutory damages to recover plus court attorney costs and fees. controversy appellant’s of grew purchase out of a used Pope Ford, Buick automobile from Neal Inc., Atlanta, Georgia, of Georgia under a Contract, Automobile Retail Installment 9,1980. September dated pro- The contract alia, vides, inter as follows: (13) PREPAYMENT REBATE: may Buyer pay this contract full at time. any so, If he get does he will a for credit the part unearned of the Charge Finance if it more. $1.00 credit figured This will be the sum digits of the method. (14) LATE CHARGES: ... The Credi- Bowen, Derrickson, West, & Goldbert tor remaining pay- accelerate the Atlanta, Ga., Ralph Goldberg, plain- S. repossess ments the Vehicle as ex-
tiff-appellant. below, plained if there default. Levine, D’Alessio, Stone, Bur- Mullins & (15) Buyer DEFAULT: If the fails to Stone, Atlanta, Ga., gess W. defendant- any payment make when it due . .. appellee. the Creditor may do either or of following:
the (a) ACCELERATION OF PAY MENTS: The may require Creditor Buyer pay the at once all remain MILLER,* Judge, TJOFLAT Before ing payments. The will re Buyer CLARK, Judges. a ceive prepayment rebate as ex plained above pays.[1] when he MILLER, Judge: (b) REPOSSESSION: .... appeal is This from the of the dismissing plaintiff-appel- first, district court Appellant argues, that FMCC approval Regulation Z, lant’s action of 226.8(b)(7),2 court’s violated 12 CFR * Miller, Judge digits Honorable Jack R. for the U.S. of sum method. It is clear that Appeals, sitting of Customs and Patent law under the rebate under accelera designation. payments tion of due to default will be no less figured by digits than that the sum of the meth Although, above, prepayment 96-1004(c) (ef od. Ann. as indicated a Ga.Code and 96-1005 20, 1980). credit of the of the fi fective March unearned charge figured nance is stated to on the sum (7) requires following: method, 2. Subsection digits policy, a FMCC has default, rebating of computing event acceleration due to Identification of the method of using method, pro portion results rata which unearned of the finance larger obliga- rebate than would be received under the event an in full of hand, the Federal Reserve Board because other where acceleration re- on rebate of unearned inter- bates are less than voluntary FMCC’s rebates, method) (using pro sepa- rata in the event must be est explained 226.8(b)(4) payments rately and, acceleration of due to default § well, perhaps speci- 226.8(b)(7). the contract differed § *3 voluntary prepayment [Emphasis in the event of fied added.] digits method), (using quot- the sum of the requiring The rule separate disclo Milhollin, ing from Credit Ford Motor Co. v. sure of acceleration practices only rebate 795, 555, 562, 790, 100 63 444 U.S. S.Ct. (not when such rebates are equal less to or (1980): L.Ed.2d 22 greater) rebates voluntary pre than therefore, 226.8(b)(7), squares Section payment adopted has been by the Fifth position with the of the Federal Reserve Circuit. v. McDaniel Fulton National Bank specific ac Board staff that disclosure of Cir., Atlanta, 948, 5 of 571 (1978) F.2d 951 4 necessary is only rebate This, (en banc). course, of is “binding policy varies from when that the custom precedent” for the Eleventh Circuit.5 The voluntary prepayment to re court, McDaniel, in commented that the [Emphasis bates. added.[3] Federal Reserve Board Official Staff Inter FC-0054) pretation (No. practical “is a one However, meaning the of “varies” area, in a plainly debatable is not wrong, by clarified the Court later in Part III of by and should —if followed the pro n.8,100 (id. n.8), at courts — S.Ct. 796 uniformity duce in a matter where uniform thus: ity very desirable.” Significantly, the Opinion weAs read the and Let- Staff Supreme Milhollin, while citing ters, however, they fundamentally are McDaniel, manifested no to intent disturb position consistent .... staff’s the rule the Fifth Circuit appears each that disclo- McDaniel. sure of acceleration rebate unnecessary practices parallel when those Appellant’s argument second voluntary prepayment policy. Z, rebate On that FMCC violated 12 CFR precomputed tion which includes charges finance from the creditor’s rebate voluntary prepayment. [Citing and a statement of the amount FRB Offi computation any charge Interpretation FC-0054, method of may of that cial Staff No. 12 any from be deducted the amount of Appendix, (1981); p. CFR Part 226 650 FRB rebate of such unearned finance that (1974), Public Information Letter No. 851 obligation an will be credited to or refunded (1974-1977 Binder) Transfer CCH Consumer to the customer. If the does credit contract 31,173; Par. Credit Guide Public FRB Infor provide rebate of fi- unearned id., 31, (1977), No. mation Letter 1208 Par. charges prepayment full, nance this 647; FRB Public Information Letter No. 1324 fact shall be disclosed. (1978), 5 CCH Consumer Credit Guide Par. Appellant recognizes (4) that 12 subsection of 31,827.] 226.8(b) requires CFR disclosure of the method of rebate on acceleration default subsequent rehearing (576 4. In a en banc the rebate of provided interest is less than that unearned 1156, (1978)), 1157 the Fifth stated: voluntary prepayment, empha- on possesses But if the creditor under his con- requirement sizes that the right tract the to retain more unearned inter- (4) subsection is not the same as that under payment pur- est in event of the accelerated (7). (4) requires subsection Subsection disclo- voluntary suant to default than in of that amount, computing sure of or method of “[t]he ... then the existence of that default, amount, delinquency, or the of right in him must be disclosed—and en- charges payable in the event of late similar tirely regard without to whether how he payments.” right exercises the event. (id. 795) re- The Court City Prichard, Alabama, 5. Bonner v. of ferred to— (1981). We note Reserve staff the view of the Federal Board recently Court of approach. has taken same right acceleration need not Company Ford Motor Credit disclosed, ac that rebate Mells, (1982). Ga. S.E.2d 271 disclosed if celeration must be it differs
226.6(c), providing Reserve Board6 be tract clauses the Federal for rebate un- cause FMCC’s contract resulting (1) disclosed earned interest from of rebating method unearned interest was (2) prepayment or prepay- accelerated on due same to default as caused majority ment default. The (viz., sum interpretation I differ in the of Ford Motor method) digits they were not the Milhollin, 444 U.S. same, pro being rata method used on 790, 63 (1980). L.Ed.2d 22 Appellant acceleration. asserts she Milhollin holds that when a creditor re- was “entitled to know” that if she allowed bates unearned interest at differing rates default, go her contract with FMCC to into separate precipitating causes, for these she would receive more unearned interest methods must disclosed. prepaid as a than voluntarily if she The Federal Reserve Board staff treat owing the installments under the contract. *4 ment of acceleration disclosure rationally First, There are two answers to this. conflicting accommodates the demands only required by regulation disclosure completeness and for simplicity. In concerning this case was that rebate on determining acceleration rebate prepayment, and no misinforma practices be only need disclosed when provided tion by was FMCC with to they diverge from other re possible Any appellant it. “confusion” of practices, bate the Federal Reserve has would relate to rebate in the of accel event may what be termed a “bottom- eration default which was not re line” approach: important the most quired Thus, (c) to disclosed. subsection information purchase credit is that regulation inapplicable of the is this to case. explains which differing charges net and Co., Heilig-Meyers (4th Fox v. 681 212 S.Rep.No.96-73, 3-4; rates. supra, Cf. 1982); Cir. see Gallois Commercial Secu Board, Federal Reserve Annual Report, Co., (5th 1981); rities Cir. Phil supra, Although at 350-352. the staff Chevrolet, Inc., beck v. Timmers 499 F.2d might have decided that acceleration re 1974). Second, adopt appel to bates are so analytically distinct from approach lant’s encourage would tend to identical rebates by buyers defaults under installment con as separate disclosure, to warrant it was contrary good prac tracts to business conclude, reasonable alternatively, to imputed tices —a result that should not be ordinary consumers would be concerned to the showing Act the absence of a chiefly differing about financial conse Congressional clear intent. Such intent quences. absent here.7 Company Milhollin, Ford Motor Credit In view of the foregoing, 444 U.S. L.Ed.2d the district court is AFFIRMED.8 (1980) (emphasis supplied; footnote omit- CLARK, Judge, dissenting: ted). I disagree majority’s Here, with the resolution practice the creditor’s policy and of the difficult presented issues in this charge case. was to less for involuntary prepay- The courts to difficulty continue have growing ment out default than that spec- interpreting various loan or finance con- in the practice ified contract. This is not (c) provides, procedure buyers 6. by Subsection inter alia: its and defaults no would longer encouraged,” simply this over- Additional information. At the creditor’s . . . law, requirements looks the option, note explana- additional information or supra, competitive supplied in the tions market credit with disclosure industry. by required part, this but none be stated shall as ... so to or mislead confuse the customer Appellant’s argument that FMCC to “failed clearly” reject- disclose the credit extender was that, dissenting opinion speculates ap- 7. The if appeal. ed below has not been renewed on pellant prevails, change “would FMCC have to plied disclosure required by on the face of the contract. revealed this part, stated, utilized, can shall be holding that a creditor but none majority, or placed the de- to mislead differing long rates so so as or confuse the contradict, or charged obscure, less than customer or lessee debtor faulting on a voluntarily prepays, relies detract attention the information debtor who opinion. required by part to note 8 of the Milhollin be disclosed. portion of However, are re- disclosures majority holds the debtor in this there are different rebate quired case was not entitled to accurate informa- abundantly is made charges “First, tion in the contract for two reasons. opinion: in the text of the Milhollin clear required regula- long rebate so as the creditor’s But concerning tion in this was that case rebate is identical voluntary prepayment, and no misinfor- voluntary pre- policy provided mation was FMCC with respect ac- separate disclosure of the payments, opinion, (Majority p. 393) to it.” Two obligatory does not seem requires errors occur Milhollin here. disclo- reading regulation. a literal sure of both rates as rebate discussed in the therefore, squares 226.8(b)(7), first of this dissent. One of these position of the Federal Reserve with the inaccurately rates was stated. Since both specific accelera- staff that disclosure of were one wrong, the dis- necessary tion requirements closure have not been met. *5 varies that from the custom Further, Z provides that rebates. its option supply creditor at additional information; original). does, if it (emphasis informa- tion or cannot mislead confuse the customer meaning of majority asserts that the The or obscure contradict or information which by the “varies” was clarified the word required. majority holds re- note 8. “Where acceleration Court required disclosures must be accurate. In voluntary prepayment less than bates are (c), forbidden, practices section two are rebates, sepa- must be misleading confusing of customers explained.” n.8. I rately AND the contradiction or detraction of at- is not a that statement would submit required tention from information. A nex- meaning “varies.” clarification us with information necessary, happened phrase to use the “less The writer triggered. the second to be How- rather than “different from.” than” The first is here. involved ever, that same footnote approval quoted Public Informa- Court disagree Additionally, I with the majority re- Letter No. 851. “If the creditor tion appellant’s adopt approach would one method for acceleration bates under encourage by buyers tend to defaults voluntary prepayment, and another Rather, installment contracts. defaults are would need to be identified both methods encouraged by varying 226.8(b)(7).” Id. The under § of the lender application our perfectly good makes sense Milhollin principles. truth-in-lending In fact if ap- rates, differing when there are holding that pellant’s approach adopted, Ford Motor must be stated. change would have to procedure by buyers and defaults would no Regu- appellant’s argument, As to second longer encouraged. Z, 226.6(c), 12 C.F.R. states: § lation reasons, At (c) information. For the above I Additional would reverse option, court, in- lessor’s additional district creditor’s sup- explanations may therefore I dissent.1 formation Bank, opinion, iel as revised since the dissent v. Fulton National 1. The drafted, 1978). true, page suggests the Su While this is first the issue in preme McDan did not disturb the rule in volved there is not what this case is about.
ALLIED CORPORATION
v. STATES. UNITED COOKE, & INC.
CASTLE
The UNITED STATES.
REYNOLDS METALS COMPANY
The UNITED STATES. 120-81T,
Nos. 78-80T and 445-81T.
United States Court of Claims.
July
*6
Milhollin,
Supreme
supra,
voluntary
involuntary pre-
said the
Court
is the same for
payments,
following
in note
444 U.S. at
disclosure of the one rate is suffi-
794:
cient.
Appeals
The fact that “disclosure” was the
issue in
Court of
for the Fifth Circuit has
position
being
McDaniel instead
also
issue
dis-
differ-
ent
closure is
obliged
treatment as between
when the creditor is
and ac-
by majority
to treat acceleration and
contended
is illus-
purposes;
opening
alike for rebate
trated
sentence in the en banc
emphasized
court has
that the critical factor
in that case:
legal
rebate,
obligation
is the creditor’s
We here reconsider en banc the rule of
policy.
rather
than
unbidden rebate
Co.,
Martin v. Commercial Securities
Bank,
McDaniel v. Fulton Nat.
(en banc),