Bone v. Hibernia Bank

• Decision Date: 04 March 1974
• Docket Number: No. 73-1540.,73-1540.
• Citation: 493 F.2d 135
• Parties: Donald L. BONE, Plaintiff-Appellee, v. HIBERNIA BANK and Michael Shields, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.2d 135 (1974)

Donald L. BONE, Plaintiff-Appellee, v. HIBERNIA BANK and Michael Shields, Defendants-Appellants.

No. 73-1540.

United States Court of Appeals, Ninth Circuit.

March 4, 1974.

Moses Lasky (argued), Brobeck, Phleger & Harrison, Tobin & Tobin Law Offices, San Francisco, Cal., for defendants-appellants.

Robert L. Lieff (argued), and Donald L. Bone, pro se, of Lieff, Alexander & Wilcox, San Francisco, Cal., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and JAMESON,^* District Judge.

CHOY, Circuit Judge:

Donald L. Bone charges that the Hibernia Bank violated the disclosure requirements of the Truth in Lending Act, 15 U.S.C. § 1638(a) (1970), as implemented by the Federal Reserve Board's Regulation Z, 12 C.F.R. Part 226, by failing to adequately identify its method of computing the unearned, precomputed portion of the finance charge on a loan obligation in the event of the obligation's prepayment. Hibernia's disclosure statement revealed that its method of rebating such interest was "according to the `Rule of 78's'." The district court, holding that this simple reference did not provide meaningful disclosure to the average credit consumer, granted Bone summary judgment and awarded him damages under 15 U.S.C. § 1640(a) (1970). The Bank appeals. We reverse.

On December 6, 1971 Bone received a loan of $4,000.00 for the purchase of an automobile from Hibernia's branch office in Lafayette, California. Interest on the loan was 7.51% per annum. The finance charge was precomputed at this rate for the three year duration of the loan obligation and added to the face amount of the note, for a total indebtedness of $4,479.84 which Bone promised to repay in 36 successive equal installments of $124.44 per month.

Before consummating the loan agreement, Bone told Michael Shields, the bank loan officer, of his concern about whether there would be any penalty for prepaying the obligation. Bone then questioned Shields at great length about the prepayment clause contained in Hibernia's disclosure statement which provides:

"PREPAYMENT. If the Loan is paid in full prior to final payment date or maturity, Borrower shall receive a rebate of any precomputed interest included in the finance charge according to the `Rule of 78\'s;\' provided, however, that there will first be deducted therefrom the sum of $25.00."

Shields explained the meaning of this clause and described its operation in several hypothetical examples of the results obtained if the loan were prepaid at various times before maturity. Several days after receiving the loan, Bone telephoned the Bank, informed it of its alleged violation of the Truth in Lending Act, and offered to "settle his claim" against the Bank in exchange for a credit of three times the amount of the finance charge. When the Bank refused the offer, Bone, appearing in pro. per., filed this action in the district court.

THE RULE OF 78's

The Rule of 78's has been defined succinctly in the statutory language of the California Civil Code § 1806.3 as a method in which:

"the amount of the refund credit . . . represents at least as great a proportion of the finance charge . . . as the sum of the periodic monthly time balances not yet due bears to the sum of all the periodic monthly time balances under the schedule of installments in the contract . . . ."

A description of the Rule's operation, however, requires somewhat greater elaboration.

The Rule of 78's is also known as the sum-of-the-digits and direct ratio methods. Under the Rule, when a loan is to be repaid in monthly installments, each month of the loan's term is assigned a digit, with the first month's digit equalling the total number of months in the agreed period of the loan. The second month is then assigned a digit one less than that of the first, the third month again one less, and so on, until the digit assigned to the last month equals (1) one. For a twelve month loan, the sum of the digits (12 + 11 + 10 . . . + 1) of this arithmetic progression is 78.¹ This number then serves as the denominator in a fractional equation, with the numerator being the sum of the digits for those months expired at the time of the obligation's prepayment. For example, assuming a twelve month loan obligation, if the entire loan were prepaid at the end of the first month, 11/78 of the total finance charge would be retained by the creditor. This represents a greater proportion of the finance charge than in any other month because the borrower has had the use of the entire amount of the loan for that month. At the end of the second month, 11/78 of the finance charge would be retained since the borrower has had the use of 11/12, or most of the loan proceeds for that month. If the borrower prepaid the entire obligation at this time, 23/78 of the finance charge would be considered to have been earned and therefore would be retained by the creditor. At the end of six months, the creditor would be entitled to 57/78 of the total finance charge, and the consumer in turn to 21/78 of such charge. See generally W. Minrath, Handbook of Business Mathematics, 506-10 (2d ed. 1959); Donaldson, An Analysis of Retail Installment Sales Legislation, 19 Rocky Mt.L.Rev. 135, 151-52 (1947); Newman, Refunding Unearned Interest Under Section 108(1) of the New York Banking Law, 90 Banking L.J. 116, 125-29 (1973). As can be seen from even this simplified description, the operation of the Rule of 78's is not difficult to comprehend, but like many arithmetic formulas, it requires a somewhat lengthy exposition in order to be understood.

The results obtained by the Rule of 78's method closely approximate those of the "actuarial" method in which the rebate bears a more direct relationship to the amount of money received and the time for which it is used, and in which "true" interest yields are produced. Because the actuarial method requires the use of actuarial tables and more difficult computations, however, the more easily computed Rule of 78's method is widely used by banks and financing institutions as an acceptable substitute for the actuarial method. Donaldson, 19 Rocky Mt.L.Rev. supra at 151-52; Jordan and Warren, Disclosure of Finance Charges: A Rationale, 64 Mich.L.Rev. 1285, 1288-90 (1966).

THE TRUTH IN LENDING ACT AND REGULATION Z

In 1968 Congress enacted the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1681 (1970). In the statute's first subchapter known as the Truth in Lending Act, Congress declared its purpose to be to assure to credit consumers a meaningful disclosure of credit terms, thus enabling these consumers to compare more readily the various available credit terms, and thereby avoid the uninformed use of credit. 15 U.S.C. § 1601 (1970). To implement these goals, Congress entrusted much of the construction of the Act to the Federal Reserve Board. The Board was given broad regulatory and rulemaking powers designed "to carry out the purposes" of the Act, by prescribing regulations which

"may contain such classifications, differentiations, or other provisions . . . as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith."

15 U.S.C. § 1604 (1970). The Federal Reserve Board was thereby empowered to require such disclosure of credit terms as in its judgment was necessary to fulfill the objectives of the Act.

Pursuant to this congressional mandate, the Board promulgated its Regulation Z, 12 C.F.R. Part 226. The section of these regulations which Hibernia is charged with violating provides that the lending institution's disclosure statement to the borrower shall contain

"identification of the method of computing any unearned portion of the finance charge in the event of prepayment of the obligation and a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to the obligation or refunded to the customer."

12 C.F.R. § 226.8(b)(7).

Bone does not contend that Hibernia failed to disclose the amount of the charge to be deducted from any rebate, since the $25.00 amount is plainly revealed in the bank's disclosure statement. It should also be noted that neither the Act nor the regulations require that a lender rebate any portion of the unearned finance charge in the event of the obligation's prepayment. Nor do they specify which method, if any, is to be used in computing such rebate. However, in the event that it does rebate such finance charges, the lending institution, in order to comply with this regulation, must "identify" the method used in computing the rebate.

It seems evident that Regulation Z has been drafted in precise, technical language. Where the Federal Reserve Board has decided that in order to provide adequate disclosure a term must be explained or described, it has required such an explanation or description. See, e. g., 12 C.F.R. § 226.8(b)(6).² Therefore, we cannot assume that as a result of mere oversight the Board required only the "identification" of the method in this instance. Although this term also seems explicit in its requirements, however, we find its connotations ambiguous since it suggests either of two plausible meanings.

"Identification" could mean, as the district court held, that the method of rebating unearned interest must be one which is understood by the average borrower, in order that it in fact be "identified." Simple reference to the Rule of 78's does not serve this function, for we daresay that its meaning is known to virtually no credit consumers. As the district court stated, "there must be a recognized nexus between the words used and some acceptable referent, or else the words used are at large and divorced from both reality and meaning." On the other hand, "identification" could mean that reference to the method by name alone will suffice for...