577 F.2d 296 (5th Cir. 1978), 77-2282, Shanks v. Greenbriar Dodge, Inc.

Docket Nº:77-2282.
Citation:577 F.2d 296
Party Name:James SHANKS, Plaintiff-Appellant, v. GREENBRIAR DODGE, INC., Defendant-Appellee.
Case Date:July 28, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 296

577 F.2d 296 (5th Cir. 1978)

James SHANKS, Plaintiff-Appellant,

v.

GREENBRIAR DODGE, INC., Defendant-Appellee.

No. 77-2282.

United States Court of Appeals, Fifth Circuit

July 28, 1978

Page 297

Joseph H. King Jr., Atlanta, Ga., for plaintiff-appellant.

Harry A. Osborne, Leonard N. Steinberg, Forest Park, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, GOLDBERG, and RUBIN, Circuit Judges.

GOLDBERG, Circuit Judge:

This truth-in-lending case presents facts virtually identical to those in Edmondson v. Allen-Russell Ford, Inc., 577 F.2d 291 (5th Cir. 1978), decided today, and is controlled by our disposition of that case. 1 Here the district court, adopting the recommendation of the special master, found that the assignment of unearned insurance premiums did not constitute a security interest required to be disclosed under the Truth-In-Lending Act and Regulation Z. We have examined the contract in issue and perceive no significant difference between paragraph 6 of Greenbriar Dodge's combined disclosure statement and retail installment contract 2 and the comparable provision examined in the Edmondson case. We conclude that this provision creates a security interest in refunded insurance premiums.

Page 298

Paragraph 13 on the face of the Greenbriar Dodge disclosure statement discloses a security interest in a new 1975 Dodge Coronet. 3 This disclosure, which unlike the Edmondson language does not refer even to proceeds, is patently inadequate as "a clear identification of the property (refunded insurance premiums) to which the security interest (in those premiums) relates." 12 C.F.R. § 226.8(b)(5).

The decision of the district court must be reversed. We remand for consideration of statutory damages and reasonable attorney's fees.

REVERSED and REMANDED.


Notes:

[1] We have considered appellee's argument that plaintiff "is estopped to raise" the § 226.8(b)(5) issue and find it without merit.

[2] Paragraph 6, found on the reverse side of the document, provides in full:

Buyer agrees to keep the property insured at Buyer's expense against substantial risk of damage, destruction, or loss for so long as any amount remains unpaid on this contract, with loss payable to the Seller as its interest may appear, and that Buyer will deliver all such insurance policies...

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