Dixon v. D. H. Holmes Co., Ltd.
| Decision Date | 16 January 1978 |
| Docket Number | No. 77-1379,77-1379 |
| Citation | 566 F.2d 571 |
| Parties | Wilmer DIXON, on her own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants, v. D. H. HOLMES COMPANY, LIMITED, Defendant-Appellee. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph W. Thomas, New Orleans, La., for plaintiffs-appellants.
Peter Frank Liberto, Nathaniel P. Phillips, Jr., New Orleans, La., for defendant-appellee.
Before THORNBERRY, RONEY and HILL, Circuit Judges.
The judgment is affirmed for the reasons stated by the district judge from the bench in granting appellee's motion for summary judgment. See attached appendix.
AFFIRMED.
APPENDIX
Motion for summary judgment on behalf of D. H. Holmes is granted. I see no reason to do more than render oral reasons, and I'll give them at this time. . . .
The Truth in Lending Act requires truth in lending, but it's not an act that requires sacrament in language. It does not require the use of shibboleths or other sacred terms.
It seems to be that the disclosure statement in this case, while, obviously, one could flyspeck it and improve on it from a technical standpoint does what the Truth in Lending Act contemplates, which is make clear to the borrower, in this case the buyer on an installment contract, the cost of his credit, the terms of his credit, and what happens should he fulfill his contract in a way other than by the number of installments called for.
I take separately the two defects sought to be found in the statement. The first is that in the boxes on the right-hand side of the retail installment contract the term "of the cash price" is omitted where the term "unpaid balance" is used, and this is a fatal defect. Now, I do not know whether in some instances omission of that term might not indeed be failing; but in this instance on this contract and in this case, which is all I have before me, it seems to me to be quite clear that that term, "unpaid balance," refers to the unpaid balance of the cash price. It is quite evident from context that that's what it means. Coupled with the figures used, its meaning could not be clearer; and, indeed, it seems to me that to tamper with the form and insert further language would make it less clear rather than more clear.
The form sets forth items as follows:
Now, it does not require a degree in law to understand, I think, that when we subtract number 2 from number 1, cash down payment from cash price, what we have is unpaid balance of cash price and could have nothing else. I see nothing there but a substantial compliance with the requirements of the regulation; and, indeed, elsewhere it has been the uniform interpretation, both of the Courts and the Federal Reserve Board, that substantial and not sacramental compliance is what is necessary.
The other fault found in the form is that the buyer is not adequately and fully informed what will happen in the event of a partial pre-payment and a full pre-payment of the contract. Here again, of course, one sentence or one line cannot be read in isolation. The contract is a monthly installment contract. It requires payments each month, 12 of them, to make the total sum due, 12 all equal in the amount of $28.35.
It is evident that unless the buyer defaults on the contract that by the time a hundred and twenty days from the date of purchase has elapsed and that date was July 15, 1976 four payments should have been made.
Now, there are, of course, a number of possibilities of pre-payment. The buyer might come in and pre-pay before he ever makes a monthly installment payment. He might come in and pre-pay after he makes one $28.35 payment. That is approximately some time more than 30 and less than 60 days after the...
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...Circuit seems to have straddled the fence on the question whether liability is imposed for technical violations. In Dixon v. D. H. Holmes Co., 566 F.2d 571 (5th Cir. 1978), the court affirmed a holding that TILA requires truth in lending but not the use of shibboleths or other sacred terms,......
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...a substantial, clear disclosure of the fact or information demanded by the applicable statute or regulation.”); Dixon v. D.H. Holmes Co., 566 F.2d 571, 573 (5th Cir.1978) (“The question is not whether [notice provided under the TILA] is capable of semantic improvement but whether it contain......
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...by the Act. Smith v. Chapman, supra, 614 F.2d at 972; see Western Pacific Financial Corp., supra, 643 F.2d at 339; Dixon v. D.H. Holmes Co., 566 F.2d 571 (5th Cir.1978). Applying an objective standard, the district judge should examine the provisions of the disclosure statement in the conte......
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