*2 expressly preempts all state laws KRAVITCH, Before TJOFLAT and Cir chargeable limit the interest rate2 Judges, *, cuit and DUMBAULD Senior Dis creating connection with loans3 first liens Judge. trict property on residential real and mobile homes,4 provided that the terms and condi TJOFLAT, Judge: Circuit comply regulations tions of such loans interlocutory appeal1 This is from a deci- promulgated by the Federal Home Loan holding sion of the district court the inter- (Bank Board).5 Bank Board est rates of three retail installment con- purchase tracts for the of mobile homes A. Georgia usurious under law. As to two of two couples married from Geor- rejected the court the lend- gia, Harrisons, pur- the Sanderses and the argument preempted ers’ that federal chased mobile homes from a dealer Georgia law and authorized the interest Thomson, Georgia. They paid part of charged. rates With to the third purchase price in cash and financed the the court refused to law, balance, Carolina’s usury giving which also the dealer a first lien on the purchased charged. by executing have authorized the mobile homes interest rate disagree We with the district retail installment contract. The court’s treat- preemption ment of the federal issue and for interest rates in excess of the accordingly by reverse its decision on this rate allowed Motor Vehicle affirm, point. Act, ap- Finance court’s Sales O.C.G.A. 10-1-30 to §§ * Dumbauld, Honorable Edward specifically exempts Senior U.S. Dis- 4. DIDMCA from state Judge trict Pennsylva- Western District of laws credit "secured a first lien transactions nia, sitting designation. property, on residential real a first lien on housing corpo- cooperative stock in a residential 1292(b) (1982). 1. See 28 U.S.C. § loan, mortgage, ration where the or advance stock, acquisition used to finance the of such "interest, points, 2. DIDMCA covers discount fi- by a first lien manufactured on a residential charges charges nance or other 501(a)(1)(A). Section home." taken, received, charged, or reserved.” Section 501(a)(1). 501(a)(1)(B) 5. Section of DIDMCA loans, applies the statute to all credit transactions en- applies mortgages, 3. DIDMCA credit sales, 501(a)(1). tered into after March or advances. Section (1982) (MVSFA). sought The dealer 10-1-38 dealer Georgia. resided in Nothing in the having of MVSFA to avoid indicated that it had been drafted buyers execute retail installment so as comply with DIDMCA. After the tracts that recited that were made in executed, contract was the dealer assigned law,6 compliance with federal presumably Citicorp. it to assigned DIDMCA. dealer the con- *3 Homeowners, Citicorp Inc., which, tracts to II. turn, in assigned them Citicorp Accept- 22, 1983, On March Sanderses, the Harri- Co., ance Inc. (collectively, “Citicorp”). sons, Moyers and (collectively “buyers” or “debtors”), invoking the district court’s di- B. versity jurisdiction,8 28 U.S.C. § Moyers, the June citizens of (1982), joined forces and filed this class Carolina, entered into a install- retail action suit Citicorp in the United ment sales Augusta, contract with an Geor- States District Court for the Southern Dis- gia purchase the dealer of a mobile Georgia. trict of They alleged that the home. The contract for an inter- interest rates they were paying Citicorp est rate excess of allowed Georgia’s usury law, violated MVSFA, and permitted MVSFA but under South Car- enjoin asked the court Citicorp from Apparently olina law. in an effort to en- collecting the interest due under their con- usury sure that South Carolina’s would They sought tracts.9 also the of recovery govern transaction, the the dealer had the penalty provided the 10-l-38(c) in section Moyers a form execute that con- of MVSFA: price formed to “double the time South Carolina law.7 The con- differ- any ential provided, delinquency charge tract and any it would be and governed by attorneys’ the law of the of fees state the and court charged costs residence; instance, dealer’s paid this the with to such” contracts.10 The captioned 6. are The contracts partially superseded "GEORGIA MO- MVSFA was a new stat- BILE HOME RETAIL INSTALLMENT CON- ute charge which removed all finance limita- TRACT AND DISCLOSURES MADE IN COM- tions on mobile home retail installment sales PLIANCE WITH FEDERAL LAW." $3,000.00 on contracts mobile home of sales or more, provided that such contracts the contain captioned 7. The contract was "SOUTH CAR- provisions required by 501(c) of DIDM- OLINA MOBILE HOME RETAIL INSTALL- CA. (Supp.1985). O.C.G.A.§ 7-4-3 If the con- MENT CONTRACT.” provisions, not does include such the fin- damage” (which ancier is liable for the "actual Citicorp incorporated 8. is Delaware defined) plus sustained the debtor principal places of business in Missouri and any twice the amount of interest or finance York. supra, New As noted in the text the charge specified in the contract not to exceed Sanderses and Harrisons are citizens of Geor- $1,000.00. 7-4-3(b)(2), 7-4-5(a) O.C.G.A. §§ gia; the are citizens South Carolina. (Supp.1985). argues Citicorp the new statu- tory applied scheme be should if it is found Subsequent action, filing this MVSFA liable to the debtors. We decline rule on this 7-4-3, partially superseded by was O.C.G.A. §§ issue, however, damages because the matter (Supp.1985). 7-4-5 certain sections properly granted is not us. leave recently of MVSFA have been amended. See appeal ruling from district court’s that inter- 10-1-32, 10-1-33, (Supp. §§ O.C.G.A. 10-1-36.1 charged est the debtors was usurious. Since 1985). superseding None of these statutes or pass district court did not on the issue of dam- amendments, however, any relevance to ages, inappropriate it be would for us to consid- presently the issues before us. See note infra er the issue this time. party argues liability provi- Neither that initiated, 7-4-3(b)(l) sion of section 10. At time suit should have been this applied by the prohibition district violation of MVSFA was a court in lieu 10-l-33(a). against recovery charge, given This finance delin is understandable contract, quency, Citicorp or on fact that under collection either statute would violation, regula- case of a “willful” liable if the did not a minimum price promulgated by pursuant or double the time tions differential. Bank Board J100.00 10-1-38(b), We, (c) ruling O.C.G.A. Nine DIDMCA. make suit, however, liability provision after apply. commencement of to which should materially advance the ulti- appeal relief in behalf sought the above debtors cause, similar con- and we had executed mate termination persons who

all Citicorp. assigned appeal. At time granted leave to tracts us, the dis- the order now before entered answer, alleged that Citicorp, in its order, court, separate certified in a trict complied Harrison contracts propriety of this plaintiff classes. The two promul- regulations and the appeal. in this certification not involved Board; consequently, Bank gated by the permissible. As charged was the interest follows, we first In the discussion that alleged Moyer question whether the Sand- address law, which allowed the that South Carolina satisfied the and Harrison contracts ers rate, controlled. After interest contracted regulations, and therefore Board’s Bank summa- cross motions for parties filed question then address the DIDMCA. We granted the district court ry judgment, the Moyer contract is controlled of whether the liability on the issue of debtors’ motion law of South Carolina *4 First, following rulings. only, making the Georgia. contracts failed and Harrison the Sanders Board’s the Bank comply with two of A. 590.4(d), (h) 12 regulations, C.F.R. §§ Georgia’s (1985), subject to and thus were 1. comply The contracts did not usury law. laws, a state’s a To avoid 590.4(d), the contracts’ because with section provide in his loan statement lender must right to concerning the debtors’ part in in may prepay full or that “debtor the without the balance of debt prepay loan at time unpaid balance of the the larger in type disclosed penalty was not 590.4(d) penalty.” 12 C.F.R. without body in of the doc- that used the than dis right prepay “The shall be comply with contracts did not The uments. type larger in closed in the loan contract lan- 590.4(h), they contained section because body doc of the than that used interpreted as eliminat- guage that could be prepay The debtors’ ument.” Id. right under that section ing the debtors’ on the face of the without is set out thirty days prior to notification receive The dis and Harrison contracts. foreclosure, repossession, or acceleration however, court, in found that words trict the debt. body documents and the the of the both Second, rejected Citi- the district court point clause were of the same prepayment law corp’s contention that South Carolina accordingly ruled that type size and Moyer The court governed the contract. 590.4(d).12 contracts did applied for two that reasoned interpretation the district court’s We view been made and the contract had reasons: unduly narrow. regulation as Georgia,11 in and it performed in in en banc decision As we noted our of the dealer’s of the state that Corp., Credit residence, i.e., control its Electric Georgia, would Grant General (en (11th Cir.1985) 1408 enforcement. 764 F.2d banc) curiam), origi (per the Bank Board’s court, pursuant to 28 U.S.C. The district 590.4(d) of section nally proposed version (1982), order 1292(b) that certified be prepayment clause required that in- summary judgment granting partial con in the loan “conspicuously disclosed controlling question of law as volved 31,124 (1980). Fed.Reg. 45 tract.” ground there was substantial eventually employed the current Board opinion and that an immediate difference of body of the con- prepayment clause and the Moyer Payments were under the spaces Atlanta, to the inch. 17 Georgia. tracts to contain in made affidavit court the with the district debtors filed printer who stated of a commercial point the size of is a unit used to measure 12. A body contracts were both clause and the approximately type equivalent Vn type. nine-point in judge type in the found the inch. The trial

1449 language type-size because believed “conspicuously disclosed” standard 590.4(h)(1)provides Section that “no potentially 45 Fed. “may troublesome.” be foreclose, repossess action to or to accel 43,684 It Reg. clear payment erate outstanding the entire regulation require is intended to a balance the obligation may current taken the debtor until 30 in after the prepayment set out the clause creditor to creditor sends the debtor de bring way as to the clause to the such a 15 Quiller in fault.” have noted v. Bar attention. The Bank Board deter- debtor’s American/Credit, clays Inc., 727 F.2d accomplish larger type mined (11th Cir.), 1070-71 reh’g banc en language in Nothing this result. (1984), granted, F.2d 1072 reinstated 590.4(d), history sug- banc, (1985), denied, en F.2d cert. gests prepayment that the clause be a — U.S.-, 106 S.Ct. 90 L.Ed.2d 673 larger type type point than used regulation require does not body type the document. The that a expressly contract contain clause prepayment clause of the Sanders and Har- guaranteeing thirty days’ debtor contracts, perhaps rison while same prior to acceleration or foreclosure. See also point body used in type type Corp., Grant v. General Electric Credit type “larger” than is still F.2d at 1407.16 aWhere contract contains pur- body of the contracts terms that are inconsistent with the notice re quirement 590.4(d). 590.4(h),however, of section poses of section The disclosure compliance contract is not in regu with the printed type; boldface each clause is *5 qualify lation and cannot pre is letter of the clause wider than those emption Quiller, under DIDMCA. appearing in the of body the contracts. F.2d at 1071. We must therefore examine addition, most of the initial letters of each the and Sanders Harrison contracts to de capitalized, word in clause are in con- they termine whether contain incon terms trast to the initial letters of the words thirty-day sistent with the require notice of body the contracts which are 590.4(h). ment of section if capitalized they begin a sentence or cer- question The documents in twice re significant distinguish- tain terms. These buyers’ fer right to be notified and ing bring prepayment factors serve to to cure in the event of default. On the debtor;13 clause the attention of the we face of following provi each contract is the therefore hold that the Sanders and Harri- concerning right sion the seller’s of acceler 590.4(d).14 son section ation: may, Subject Buyer’s “Seller 13. The attention of the debtor is focused further itor sends the debtor a notice of default in the prepayment (h)(2) on the paragraph clause the fact that in the forth form set of this and Sanders Harrison contracts it is the first reg- Such section. notice shall be sent appears substantive term that in the documents. receipt istered certified or mail with return right prepay the debtors’ without requested. pay- In the of case default on body ments, is reiterated of may only sum stated in notice tracts. payments applicable include in default and charges. late or If deferral the debtor cures 590.4(d) interpretation of Our section is days postmark the default within 30 of general shared the Bank Board’s counsel subsequently the notice and time, defaults second who, upon Citicorp, submission examined again give the creditor shall notice as and Harrison contracts and con- is described above. The debtor not entitled to 590.4(d). cluded that satisfied section any notice one- of default more than twice in year period. 590.4(h)(1) (1985) provides: 15. 12 C.F.R. (h) repossession, foreclosure, Although Notice the Sanders and Harrison contracts (1) Except rights or acceleration. in the case of did not detail the debtors' notice under 590.4(h), contracts, abandonment or other extreme circumstanc- both as observed su- es, foreclose, letters, repossess pra captioned no action to or to note were in bold payment outstanding accelerate of entire “GEORGIAMOBILE HOME RETAIL INSTALL- obligation, may balance against taken MENT AND MADE CONTRACT DISCLOSURES days the debtor the cred- IN until after COMPLIANCEWITH FEDERAL LAW.” Cure, Right to sion Notice and acceler- on the back of the contracts inconsist-

Right of 590.4(h). ent with section Like the one on unpaid Pay- of the Total ate the balance provision the face of the charges computed ac- ments less earned expressly rights conditions the seller’s upon pro rata method de- cording to and forfeiture on acceleration the satisfac- installment or payment of all other fault right tion buyers’ of notice and obligations provided herein.” The follow- court, however, to cure. The district held appears on the back of each ing provision language on the back of the con- contract: that, indicating tracts where notice is re- Buyer’s Right to Notice Subject quired by the Uniform Commercial Code default, Right to such Cure Default (U.C.C.), days five will rea- be considered occur, default shall any, if whenever a sonable notice is inconsistent with the thir- thereafter, (such any default not time 590.4(h). ty-day required by notice cured) having been Seller previously do not share this view. unpaid of the total of declare the balance simply any The U.C.C. does not contain plus charges, any less payments accrued foreclosure, requirement prior notice re- charges of unearned due refund possession, Thus, or acceleration. the con- payable and Seller shall have all the provision defining five as rea- party secured under the remedies sonable notice in those instances where the If Uniform Commercial Code. requires inapplicable U.C.C. notice is required by the Uniform Commercial foreclosure, repossession, or acceleration Code, such notice shall be deemed rea- situation and does not conflict with section mailed, given sonably properly if 590.4(h). only pertinent require- postage prepaid address of the ment in the U.C.C.’s treatment of secured entitled, Buyer shown in the section “Ad- transactions in the case of Buyer Receipt dress of After of Posses- disposition of the collateral fore- after (5) days sion Collateral” at least five closure, “reasonable notification of the before the event to which place any public time and sale or reason- required. (Emphasis added.) notice is able notification of the time after which The district court held that this any private disposi- sale or other intended requirement inconsistent with the notice *6 tion is to be by made shall be sent the 590.4(h). find no such inconsist- party secured the debtor.” O.C.G.A. ency. 11-9-504(3) (1982).17 The Sanders and § provision The notice on the face of the Harrison contracts define noti- “reasonable harmony contracts is in section 590.- with days. incorporation fication” as five 4(h), clearly requires for it as a condition into these contracts of such a definition of precedent to the seller’s to accelerate provisions the notification contained in sec- buyer given that the be notice and the 11-9-504(3) tion is not inconsistent with the Further, opportunity to cure. there is requirement, federal notice because the lat- nothing provision suggests in the that that speaks only procedures ter to be fol- rights foreclosure; such are not those enumerated in prior lowed section 11-9- regulations. provi- 504(3) the applies only Nor is the the creditor has after not, case, contend, agreement being language 17. The U.C.C. does absent an the the on debtor, that, require any stating between the creditor and the back of the contracts U.C.C., prerequisite purpose required notification to a debtor as a to a notice taking possession creditor’s of the collateral. five notice will be considered reasonable is 30-day provisions See O.C.G.A. 11-9-503 As to the Sand- inconsistent with the notice § 590.4(h). argument ers and Harrison the creditor and the of section This fails to dis- agreed tinguish permitted by debtors that is a that the creditor could foreclose between conduct giving on the collateral after the debtors 30 statute and conduct that is that days’ Although not notice and a chance to cure. The debtors statute. section 11-9-503 would that, argue agreement a between a credi- because section 11-9-503 allows invalidate notice debtor, agreements, agreement unacceptable 30-day such tor and a it is an overstate- part requires becomes ment to maintain that the section that a of the section such that it must given prior being required by to foreclosure. be viewed as the U.C.C. This the debtor be contract, possession Moyer taken of the collateral. Accord- Laws ingly, we hold that the Sanders and Harri- maintains, Citicorp a rela- substantial 590.4(h). satisfy son Carolina,18 tionship a that with state contract; would enforce the B. govern the contract. laws should Moyer Citicorp concedes that Citicorp does persuade not us. Even requirements not does were we to assume Georgia courts that result DIDMCA and as a the contract rule,19 would the Restatement it does justifies subject Citicorp is to state law. not follow that South Carolina law should collecting interest rate it has been govern Citicorp the contract at hand. ig- relying law, on South Carolina which al- contract, nores the crucial fact that lows the rate. It contends that the trial drafted, which it in effect calls for the in applying Georgia court erred than rather application of Georgia law. Given this South Carolina law to contract. We provision, choice of law we find it difficult find no trial court error. Citicorp’s accommodate argument South Carolina law should applied.

The contract was executed and payable Georgia. made It is true that choice of law the “[a] provision parties application contained choice will not secure of a law indicating that the contract shall be con applicable otherwise be strued in accordance with the laws of the sustain a against charge place usury.” in which the seller’s of business state Restatement 203 comment e. purchased Moyers designed is located. The their This rule to protect is a debtor overreaching from a dealer. To from an mobile home creditor who seeks to get this choice of around secure the of a more favorable having on a choice of law rule law of a relies state substantial rela- contends, Georgia applied tionship courts have policy contract. Id. Such considerations, however, usury argues It that in cases. such cases a are not relevant upheld against charge present inquiry. instance, contract will be In this usury parties agreed if it rate of interest the law of permissible Georgia, in a state with clearly having a state a substan- contract, relationship. relationship contract has substantial tial should con- (Second) Moreover, Restatement Conflict trol. this case the creditor See Citicorp supports uphold its contention with the fol- state that would the contract (1) lowing observations: are citizens applied was in favor of the law Carolina; (2) captioned of South the contract is of a state that would not enforce the “SOUTH CAROLINAMOBILE HOME RETAIL but in cases such either exe CONTRACT”; (3) INSTALLMENT the contract performed cuted and in the state whose law was por- on the identified bottom left-hand applied, parties explicitly provided or the *7 tion as "SOUTH CAROLINA-16 CITICORP apply. contract the laws that state would HOMEOWNERS, 4180”; (4) INC. the contract Byrd Equitable See v. Soc’y., Assurance 185 Life buyers report to notifies the the South Car- 628, 63, (1938) (enforcing Ga. 196 S.E. 70 clause any olina Chief Insurance Commissioner at- provided application in contract which require tempt buyer purchase insur- law); Rambo, Georgia First Nat'l Bank v. 143 covering any partic- ance the mobile home from 665, 840, (1915) (applying Ga. S.E. 85 842 law of (5) agent company; ular insurance or the con- performed); state where contract executed and buyers policy no of hazard notifies 389, Corp., Ga.App. Clark v. Transouth Fin. 142 or a mobile insurance issued delivered cover 135, (1977) (applying 236 S.E.2d 136-37 provide home located in South Carolina shall per Carolina where executed and law contract (6) period policy years; for a in excess of three parties provided formed in that state and 20-day makes no- reference computed prepayment interest on was to be tice of default the South Carolina law); Liberty with South Carolina accordance Code. Uniform Commercial Credit 280, Crowder, Ga.App. Corp. v. 116 Loan 157 Georgia support case law does not seem to 52, (1967) (applying S.E.2d 53 Alabama law present assumption. Citicorp this us, has failed to performed where executed in that discover, any nor have we been able state). Georgia applied case that has the Restatement rule. There do where the law of a exist cases 1452 more application of laws not to enforce the contract’s choice of agreed ’ debtor; parties’ choice provision.20

favorable in this case would not “sustain a of law charge usury” from the but III. Thus, render the usurious.

would conclusion, we hold that federal problem overreaching of creditor is not preempts We, therefore, of MVSFA to the reason presented. see no 7-4-10(d) principal pursuant Citicorp state law de- ers’ claim to O.C.G.A. § asserts two First, (1982), fenses the debtors’ claims. which that actions for the re argue covery that a debtor has no cause of action under forfeited interest due under a usuri paid princi- brought back the year. MVSFAuntil he has entire ous contract must be within one Moyers pal Family due under the contract. The at the Taylor, See Home Serv. Inc. v. 142 Ga. paid 386, 28, (1977). had not all of the App. time the suit was filed 236 S.E.2d 29 Alternative principal due under their contract. For this ly, Citicorp urges apply us to O.C.G.A. 9-3-28 reason, Citicorp (1982) ("[A]ctions maintains that the trial court informers to recover refusing fine, forfeiture, their erred in to dismiss claim. We or shall be commenced support for this contention in either find year within one from the time defendant's lia Georgia MVSFA or case law. MVSFA nowhere discovered”). bility Moyers thereto is con prerequisite bringing provides that as a (1982) ("[Ajc tend that either O.C.G.A.§ 9-3-22 successful action under the statute a debtor rights accruing tions for the enforcement of pay principal must due under the install- incorpo individuals under statutes or acts of by Citicorp, ment contract. cases cited by operation brought ration of law shall be & Southern South DeKalb Bank v. Wat- Citizens years") (1982) within 20 or O.C.G.A. § 9-3-26 kins, 759, (1976) Ga. 236 225 S.E.2d 266 ("[Ajctions upon express implied Lucas, 521, Corp. I.D.S. Homes v. 228 Ga. 186 brought not otherwise for shall be (1972), S.E.2d 745 neither which involved an years”) applied. within four should be MVSFA, application of addressed situations in We need not determine which these stat- injunction sought halting debtor an case, because, governs present utes even if proceedings against securing foreclosure a deed year period we were to the one limitations Georgia Supreme a usurious note. The Court in urged Citicorp, Moyers’ claim would not that, equitable both instances held relief, to obtain Citicorp argues be barred. that MVSFA actions injunction preventing such as an fore- brought year making must be within one closure, pay principal a debtor must first upon brought. of the contract which the suit is Watkins, sum due under the note. 762-63, 236 Ga. at Treating alleging usury, MVSFAactions as suits 268; Lucas, 236 S.E.2d at 228 Ga. at damages because maintains all are deter- 521-22, S.E.2d 186 at 745-46. These cases are contracting, minable at the time of such a one- clearly distinguishable from the action year period Citicorp, is reasonable. granted eq- us in that were not violation; ignores ongoing nature of a remedies; sought uitable the remedies ex- were payments on a usurious contract extend well plicitly enumerated in MVSFA. We have found beyond year. Georgia, seeking one an action support requirement no case that would forfeiture of interest on a usurious loan is time- imposed seeks to have on a debtor ly brought if it is within twelve months of the fact, bringing an action under MVSFA. In payments sought interest which are to be recov- decision in Fed. Sav. & Loan Bozeman Tifton Watkins, 411, Ga.App. ered. Co. v. 67 Hartsfield Ass’n, Ga.App. 297 S.E.2d 49 Thus, 20 S.E.2d 441-42 implicitly rejects Citicorp’s contention. In Boze- recovery paid by of interest the debtor more man, applied the court MVSFA to cause the year prior than one to the initiation of the forfeiture the entire finance under an action be barred the statute of limita- though installment contract even the debtor at Further, tions. as debtors seek the forfei- brought principal the time the suit was owed yet paid, contracted ture of interest for but $9,040.70. 262-63, sum of Id. at 297 S.E.2d at Ass’n., see v. Sweetwater Sav. Duderwicz 52; Spann, see also Ford Motor Credit Co. v. (5th Cir.1979) (interpreting 1013-14 F.2d Ga.App. 265 S.E.2d Ac- law), one-year it is clear that statute cordingly, reject Citicorp’s argument we on this seeking cannot bar a suit to avoid of limitations *8 point. payments. In future interest while Moyers’ further maintains that the year prior filing payments one made action was barred the statute of limitations. recoverable, they may not be an action The into their entered installment con upon principal claimed as credits sum 10, 1981, approximately year tract on June one Corp. loaned. See Reconstruction Fin. v. Puck- prior and nine months to the commencement of ett, 288, 861, We, 181 Ga. 181 S.E. 865 Although suit. MVSFA contains no statute of refusing find no trial court error in to provisions, Citicorp argues limitations Moyers’ dismiss the claim as barred the stat- judge refusing Moy trial erred in to dismiss the

1453 clearly contrary” and Harrison contracts and re- “not DIDMCA), to cert. — ruling the district court’s verse con- denied, —, 1993, U.S. 106 S.Ct. 90 We affirm the court’s trary. determination L.Ed.2d 673 governs the enforcement Although a contract need not include Moyer contract. of the thirty day notice, foreclosure the contract in part; AFFIRMED REVERSED in ambiguous should not be or misleading as part. to Quiller, foreclosure notice. 727 F.2d at we relied on General Finance KRAVITCH, Judge, dissenting: Circuit Corp. Sprouse, (5th v. 577 F.2d 989 Cir. respectfully I dissent from section A2 of 1978).1 Sprouse teaches that courts must majority’s opinion determines interpret agreements subject to consumer by holding that the district court erred protection legislation light in opera contract inconsistent with notice re tion of the contract the commercial quirements Depository Institutions world, upon the effect a consumer unfa Deregulation Monetary Act, Control 12 legal rights miliar with and the risk that a (DIDMCA). U.S.C. 1735Í-7 note might advantage lender take of ambiguous Quiller Barclays American/Credit, v. provisions. 993. Id. at The rationale of Inc., (11th Cir.1984), 727 F.2d 1067 rein Cir.1985),Sprouse is that is naive to assume banc, (11th “[i]t en 764 F.2d 1400 stated — —, every controversy denied, litiga rt. U.S. culminates in S.Ct. ce recognized 90 L.Ed.2d we tion.” all cases, Id.2 As in contract we require law did not that a ambiguities must construe explicitly inform debtor of his drafter, Enterprises, Landale Inc. Ber v. thirty days prior to fore ry, (11th Cir.1982), 676 F.2d 506 closure order for a creditor avoid state agreements subject to protection consumer held, usury laws under the DIDMCA. We , legislation, we must accord provi nonetheless, containing that a contract sions interpretation a reasonable con contrary terms does not sumer give Quiller, them. 727 F.2d a creditor entitle to the benefits of federal 1071; Sprouse, at 577 F.2d at 993. 1071; preemption. 727 F.2d at see also in the instant v. Corp., Grant General Electric Credit contract is on the back of the document. (11th Cir.1985) (en 764 F.2d (creditors banc) While it states that foreclosure and entitled to benefits of acceler- fed preemption provisions eral payments where contract ation of “[sjubject Buyer’s are Citicorp’s remaining ute of limitations. Citicorp’s agents defens- district court found that Moyers’ es engaged claim are meritless. pattern” threatening in a "definite repossession prior and foreclosure with no no- Circuit, 1. The Eleventh en banc decision During tice whatsoever. the course of tele- Prichard, City Bonner 661 F.2d debtors, phone conversations Glenda Bur- (11th Cir.1981), adopted precedent decisions ris, agent, a collection would call out to cowork- prior of the former Fifth Circuit rendered "put indicating ers to on some axles the truck” October direction, departing at her a truck case, present In the the district court’s oral that moment to foreclose on the debtor’s mobile fact, findings of based on uncontroverted evi- home. In several instances debtors were told dence, amply contemplated by illustrate abuses belongings personal that their would be taken Sprouse. Quiller and The district court found: along with their homes. Several debtors fled we Here have a situation where the their calls. lender has homes after these None of these gone federally required thirty somewhat further than a situation where debtors received the merely attempted Quiller has written [as ] to notice of foreclosure. Quiller, provisions Sprouse utilize contractual which are con- Unlike which addressed trary regulations. hypothetical provisions to the statute and abuse through oper- protection legisla- a situation where the lender inconsistent with consumer tion, gone beyond presents atives the contract and de- the instant actual abuse of case possession provisions ambiguities manded immediate and taken ex- ac- contract ploited by whose tire by telephone repossess directly tion and to fore- creditors in manner trary regulations. close. to federal *9 spirit Right Sprouse and the of the DIDMCA.4 and of Default

Right to Notice ambiguous misleading. and en- The clause' is the seller states that it further Cure” reasonably A construe it party under consumer a secured joys the remedies most, days foreclosure (U.C.C.) providing, five Code Commercial the Uniform notice, rules of in- “such notice. Fundamental contract requires the U.C.C. where terpretation require us to construe the con- reasonably and deemed shall be notice ambiguities against I (5) its drafters. ... at least five tract’s given if mailed properly court: the notice agree with the district with to which the event days before provisions here are inconsistent with the majority The required.” notice requirements of the DIDMCA and the cred- consistent provision is that this cludes cannot, feder- benefit from provisions itors because the U.C.C. the DIDMCA Al- of state laws. preemption al notice that must be address the masterpiece legal though the U.C.C. is collateral be dis- foreclosed before craftsmanship, we should not assume regulations posed of whereas the DIDMCA pre- are versed in its intricacies thirty days notice consumers only that mandate provisions pay- not misled acceleration of therefore cede foreclosure and actually exploited such, tacitly readily interpretable and majority as- ments.3 As consumer intimate in a manner inconsistent with consumers have an sumes that legislation. knowledge protection working of the U.C.C. will explicitly period notice realize that the applies in their contracts

enumerated

disposal collateral and not to of foreclosed The uncontroverted evi-

foreclosure itself.

dence, as found the district

court, demonstrates that neither debtors agents Citicorp’s

nor construe the agents majority Citicorp’s does:

as the prior attempted to foreclose with

notice whatsoever. view, provi- my the foreclosure notice Quiller, patently

sion is inconsistent with simplification Georgia’s cod- 3. O.C.G.A. 11-9-503 The § 9-503, provides part: Truth-In-Lending of U.C.C. and encour- § ification Act disclosures aged promulgation for com- agreed party of model forms has Unless otherwise a secured right possession to achieve fur- on default the to take mon credit transactions in order Cong., clarity. S.Rep. collateral. 2nd ther No. 96th majority provi- 16-17, contends reprinted in U.S.Code Sess. 25-26 setting days sion U.C.C. notice at five 236, 251-52, Cong. 260-61. Pursu- & Ad. News does not 9-503 foreclosure notice § DIDMCA, regulations ant to 501 of the permits, require, because but does not § 9-503 in all provide a notification form for use default prior notice to foreclosure. property abandon- extreme cases such as but majority’s reading I do not share the narrow 590.4(h). repeated C.F.R. § default. 12 ment A fair of that section §of 9-503. thirty day explicitly form sets out the parties agree thirty days here is: where great lengths Congress went to to cure. foreclosure, precede notice then that will Truth-In-Lending DIDMCA to en- Act and the invoking By prerequisite is a to foreclosure. protec- fully are aware sure that debtors DIDMCA, agreed provide the thirty days The con- federal law. tions afforded them prior foreclosure. It is not gressional goal clarity aware- and consumer overstating by interpreting requir- it as 9-503 served is ill ness in credit contracts ing pre-foreclosure notice where a creditor has majority’s conclusion that the Therefore, agreed. I would that Citi- so corp’s provision hold with the DIDMCA. us is consistent setting at five U.C.C. notice explicitly contrary requirements DIDMCA.