For this appeal concerning the Truth in Lending Act, the defendant/appellee automobile dealer from whom Appellants purchased a vehicle having prevailed in a bench trial on the basis that the dealer is not a “creditor” within the meaning of the Act, that issue and whether the transaction was a “consumer transaction” for purposes of the Act are the primary matters at hand. We VACATE and REMAND for further proceedings.
I.
In December 1994, Thomas Sturdevant and his wife, Stefanie Riviere, (Appellants) purchased a white pickup truck from Banner Chevrolet. After that truck was damaged in September 1995, Appellants returned it to Banner for repairs. By check, their insurer paid approximately $2,100 to them and $242 to Banner for the damage/repairs.
Appellants testified that, when they returned to Banner to retrieve the truck in October 1995, it was not completely repaired. Sturdevant then discussed with Frank Tessitore, a Banner salesman, trading in the truck toward the purchase of a new one. Appellants did so on 13 October 1995, purchasing a new gold pickup.
The purchase was a credit transaction. Banner completed the form “Retail Instalment Contract”, identifying Banner as the “Vendor/Creditor” and containing a section captioned “Federal Truth-In-Lending Disclosures”, in which, among other things, *459 Banner stated the “finance charge” and “amount financed”. The contract provided that Banner assigned its interest to General Motors Acceptance Corporation (GMAC).
In conjunction with the purchase, Tessi-tore had the white truck appraised and offered Sturdevant $10,000 on the trade-in. Sturdevant refused. Following a second appraisal, Tessitore offered to value it at $12,000. Sturdevant accepted; but, he testified that he understood the appraisal to represent the value of the truck in its still-damaged condition. Tessitore testified that the white truck was fully repaired; that the appraisal represented its value in that condition.
During the sales transaction, Sturdevant was in possession of the $2100 insurance check. Tessitore testified that he told Sturdevant to give the check to the body shop manager as payment for the work on the white truck; and that Sturdevant assured him that he would. However, Appellants kept the check.
Accordingly, the day after Appellants took possession of the gold truck, Tessi-tore asked Sturdevant for the insurance check. Sturdevant refused. (Banner subsequently obtained a state court judgment against Appellants for the amount due for the repairs.)
Approximately two weeks later, Appellants refinanced the purchase. As discussed infra, they maintain that, prior to refinancing, the new truck was used solely for consumer, not business, purposes.
In Novembеr 1995, Appellants filed this action, claiming that Banner had violated the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq. 1 Following a bench trial, the district court ruled in favor of Banner, on the basis that it was not a “creditor” within the meaning of TILA. 2
II.
Factual findings are reviewed for clear error; questions of law,
de novo. E.g., Bridges v. City of Bossier,
A.
Enacted to ensure the “informed use of credit results [through] an awareness of the cost thereof by consumers”, TILA аttempts to achieve this goal by mandating “a meaningful disclosure of credit terms”. 15 U.S.C. § 1601(a).
See also Fairley v. Turan-Foley Imports, Inc.,
In the light of TILA’s purpose and the fact that, among other functions related to being a traditional creditor, Banner completed the form retail installment contract, including the TILA disclosures and identifying itself as the “Vendor/Creditor”, it should follow that Banner is the TILA “creditor”. But, of course, we must look *460 to TILA to make that determination. Along this line, Appellants contend that the district court, in holding that Banner was not a TILA “creditor”, erred in its interpretation of TILA and the applicable regulation and by rejecting the official Federal Reserve Board (FRB) commentary. We agree.
Prior to. the enactment of the Truth in Lending Simplification and Reform Act, Pub.L. No. 96-221, 94 Stat. 132, 168 (1980) (TILSRA), the TILA definition of “creditor” distinguished between “creditors” and “credit arrangers”, defining a “creditor” as one “who regularly extend[s], or arranged for the extension of, credit”. 15 U.S.C. § 1602(f) (1980) (subsequently amended by TILSRA);
see also
12 C.F.R. § 226.2(s)(1980) (pre-TILSRA regulatory definition of “creditor”). Applying this former definition, the Supreme Court held that an automobile dealer was a TILA “credit arranger” because it merely arranged for credit with a finance company which, in turn, became the immediate as-signee of the underlying contract.
See Ford Motor Credit Co. v. Cenance,
In response to Cenance, Congress enacted TILSRA (effective in 1982) and amended the definition of “creditor”. As a result, TILA presently defines a “creditor” as
a person who both (1) regularly extends, whether in connection with loans, sales of property or services or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement.
15 U.S.C. § 1602(f). The legislative history of TILSRA reflects that Congress sought to simplify the definition of “creditor”.
See
S.Rep. No. 96-73, U.S. Code Cong. & Admin. News at 280,
When it enacted TILA, Congress “delegated expansive authority to the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit”.
Fairley,
If an obligation is initially payable to one person, that person is the creditor even if the obligation by its terms is simultaneously assigned to another person. For example:
*An auto dealer and a bank have a business relationship in which the bank supplies the dealer with crеdit sale contracts that are initially made payable to the dealer and provide for immediate assignment of the obligation to the bank. The dealer and purchaser execute the contract only after the bank approves the creditworthiness of the purchaser. Because the obligation is initially payable on its face to the dealer, the dealer is the only creditor in the transaction.
*461 12 C.F.R. pt. 226, supp. I, subpt. A, cmt. 2(a)(17)(i)(2) (emphasis added).
The district court concluded that Banner was not a TILA “creditor” for two reasons: it was not an extender of credit because, although its credit department investigates credit histories and prepares forms, it is ultimately GMAC or other entities to which Banner subsequently assigns a loan that actually make the loan and thereby extend the credit; and, according to the district court, the obligation was not initially payable to Banner. Accordingly, the court also found that Regulation Z was not applicable to Banner. See 12 C.F.R. § 226.2(a)(17)(i) (defining creditor as one “to whom thе obligation is initially payable”). In so deciding, the district court rejected the FRB staff interpretation of “creditor”.
In
Green v. Levis Motors, Inc.,
In
Green,
our court did not explicitly address the issue before us. But, its disposition could only be reachеd by treating the automobile dealer as a TILA “creditor”.
3
See also Ellis v. General Motors Acceptance Corp.,
In this regard, the district court erred by rejecting the FRB staff commentary. In
Milhollin,
As noted supra and by the district court, Banner identified itself in the form retail installment contract as the “Vendor/Creditor”. In the light of this, viewing the contract as a whole, and applying the FRB staff interpretation, the obligation was initially payable to Banner, even though it was assigned to GMAC. See 12 C.F.R. § 226, suрp. I, subpt. A, cmt. 2(a)(17)(i)(2) (even where obligation is simultaneously assigned to another, automobile dealer is “creditor” if obligation is “initially payable on its face” to automobile dealer). The staff interpretation also makes it clear that, although Banner simultaneously assigned the loan to GMAC, it still “extеnded credit” as a “creditor” under TILA. Id.
B.
As a second basis for TILA not being applicable, Banner maintains, as it did in district court, that the sale of the gold truck was a business, not a consumer,
*462
transaction. TILA exempts “transactions involving extensions of credit primarily for business, commercial, or agricultural purрoses”. 15 U.S.C. § 1603(1); see
also Poe v. First National Bank of DeKalb County,
Therefore, “[w]e must examine the transaction as a whole and the purpose for which the credit was extended in order to determine whether this transaction was primarily consumer or commercial in nature”.
Tower v. Moss,
Banner asserts that, in the light of this, it follows that Sturdevant purchased the gold truck for his business. But, Sturde-vant testified that he never used it for his business in 1995.
And, when questioned regarding the 1995 tax return, he claimed that his tax preрarer took the deduction without his knowledge. He also testified that he did not use the gold truck for business during the two week interval between its purchase and its refinancing. Riviere testified that, during those two weeks, she used the truck for transportation to her place of work. Further, all documents executеd in connection with the sale of the gold truck indicate that it was a consumer transaction. Finally, the title and loan documents were drafted in Riviere’s name. (Sturde-vant testified that her name was used because of his poor credit.)
Obviously, the evidence is conflicting. That the documents relevant to this transaction label it as “consumer” is not dispositive. The few cases that address this issue look to the substance of the transaction and the borrower’s purpose in obtaining the loan, rather than the form alone.
See Tower,
In short, resolution of this issue involves a factual determination of Appellants’ purpose in purchasing the gold truck, which hinges on Sturdevant’s credibility. Although the district court discussed the evidence regarding this issue, it did
not
make factual findings regarding the purpose for the purchase. Of course, we may, in our discretion, resolve this issue for the first time on appeal.
See Green,
But, cutting against our doing so is, inter alia, the district court’s noting that, *463 had it proceeded to the merits of the TILA claims, it would have credited Tessitore’s testimony that the repairs to the white truck constituted a separate transaction from the sale of the gold truck. In so doing, the court rejected Sturdevant’s version. Because the court apparently found at least one portion of Sturdevant’s testimony to lack credibility, we are reluctant to decide the consumer transaction issue, which, as noted, turns primarily on his credibility.
The better course is to remand to the district court for findings of fact. Obviously, should it find a consumer transaction, it should then rule on the claimed TILA violations.
III.
For the foregoing reasons, the judgment is VACATED and this case is REMANDED for further proceedings consistent with this opinion.
VACATED and REMANDED.
Notes
. Appellants also presented claims against Banner's attorneys under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, based on a demand letter to Appellants from Banner's attorneys. These claims were dismissed following Appellants' presentation of evidence at trial. No appeal was taken from that dismissal.
. A prior panel affirmed. Appellants then sought rehеaring en banc. Amicus briefs urging the court to reconsider its decision with regard to the creditor issue were filed by the Commercial Law League of America, the National Association of Consumer Advocates, the National Consumer Law Center, the American Bankers Association, the Consumer Bankers Association, the American Financial Services Association, and the Louisiana Bankers Association. The prior panel granted rehearing and vacated its opinion. See
Riviere v. Banner Chevrolet, Inc.,
. Regarding a similarly structured transaction, several other district courts have found that an automobile dealer, such as Banner, was a “creditor” under TILA.
See Baldwin v. Laurel Ford Lincoln-Mercury, Inc.,