Gibson v. Bob Watson Chevrolet-Geo, Inc., CHEVROLET-GE

Decision Date23 April 1997
Docket NumberINC,Nos. 96-2673,96-2776 and 96-3093,CHEVROLET-GE,s. 96-2673
Citation112 F.3d 283
PartiesRuthie GIBSON, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. BOB WATSON, Defendant-Appellee. Marion ABERCROMBIE, Plaintiff-Appellant, v. WILLIAM, Defendant-Appellee. Eutiquio HERNANDEZ, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. VIDMAR BUICK CO., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Daniel A. Edelman, Cathleen M. Combs, James O. Latturner (argued), Charles E. Petit, Edelman & Combs, Chicago, IL, for Plaintiffs-Appellants.

James R. Daly (argued), Robert C. Micheletto, Jayant W. Tambe, Jones, Day, Reavis & Pogue, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and ROVNER and EVANS, Circuit Judges.

POSNER, Chief Judge.

We have consolidated the appeals from the decisions dismissing on the pleadings three class-action suits against Chicago-area automobile dealers for violation of the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. These suits are among some fifteen almost identical class actions filed by the same law firm against such dealers. For unexplained reasons the cases, having initially been randomly assigned to different district judges in the Northern District of Illinois, were not reassigned to a single judge, as authorized by N.D. Ill. R. 2.31, but remained with the original judges, eleven of whom have ruled on motions to dismiss the complaint or to grant summary judgment for the defendant. Six have denied such motions and five, including the three whose rulings are brought to us by these consolidated appeals, have granted them.

The facts are very simple, and can be illustrated by Gibson's case. She bought a used car from Bob Watson Chevrolet on credit. The dealer gave her a statement captioned "Itemization of Amount Financed." The statement contains a category referred to as "Amounts Paid to Others on Your Behalf," under which appears an entry that reads: "To North American for Extended Warranty $800.00." The dealer admits that a substantial though at present unknown amount of the $800 was retained by him rather than paid over to the company that issued the warranty (North American). The question is whether the failure to disclose this retention violates the Truth in Lending Act.

There are two possible violations. First, when the dealer sells cars for cash rather than on credit, it marks up the warranty less (according to the plaintiffs), and hence retains a smaller amount of the warranty charge. Because the charge by the issuer of the warranty is presumably unaffected by the amount of the dealer's mark-up, the dealer is levying an additional charge on its credit customers that plaintiffs call a "finance charge," which must be disclosed to the customer. 15 U.S.C. §§ 1605(a), 1638(a)(3); 12 C.F.R. § 226.18(d) and Pt. 226, Supp. I § 4(a); Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 940 (7th Cir.1995).

Second, the Act requires the lender or creditor to provide "a written itemization of the amount financed," including "each amount that is or will be paid to third persons by the creditor [the dealer here] on the consumer's behalf, together with an identification of or reference to the third person." 15 U.S.C. § 1638(a)(2)(B)(iii). The argument that Bob Watson Chevrolet (as before, we're using Gibson's case as typical of all three cases) violated this provision is straightforward, and let us start with it. The amount to be paid to North American on Gibson's behalf is not stated correctly in the written itemization of the amount financed that Gibson received. It is true that the consumer is not entitled to the statement unless he makes a written request for it, § 1638(a)(2)(B); 12 C.F.R. § 226.18(c)(2), and there is no indication that Gibson did. But the creditor is allowed to skip this stage and simply provide the itemization of the amount financed without being asked for it. 12 C.F.R. Pt. 226, Supp. I § 18(c)(1). That appears to be what Bob Watson Chevrolet did. In any event, it furnished the itemization, and the itemization contains a false representation.

The defendants emphasize quite properly that the Act is not a general prohibition of fraud in consumer transactions or even in consumer credit transactions. Its limited office is to protect consumers from being misled about the cost of credit. If the dealer retains the same amount of the warranty charge on credit purchases as he does on cash purchases, he is not misleading the consumer about the cost of buying on credit. But it is a contested issue whether the retention (mark-up) is the same; and even if it is, this is not a defense to the claim of inaccurate itemization. Section 1638(a)(2)(B)(iii) is free-standing. It requires disclosure--meaning, we do not understand the defendants to deny, accurate disclosure, Fairley v. Turan-Foley Imports, Inc., 65 F.3d 475, 479 (5th Cir.1995)--of amounts paid to third persons by the creditor on the consumer's behalf, whether or not cash customers pay less. Bob Watson Chevrolet did not accurately disclose the amount that it paid North American for the extended warranty on the car that Gibson purchased. It said it paid $800; in fact it paid less.

The defendants argue that the Federal Reserve Board, the oracle of the Truth in Lending Act, 15 U.S.C. § 1604(a); Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S.Ct. 2266, 2273-74, 68 L.Ed.2d 783 (1981); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565-69, 100 S.Ct. 790, 796-99, 63 L.Ed.2d 22 (1980); McGee v. Kerr-Hickman Chrysler Plymouth, Inc., 93 F.3d 380, 383 (7th Cir.1996); Cowen v. Bank United of Texas, FSB, supra, 70 F.3d at 943, has issued an Official Staff Commentary that authorizes the dealers to do what they did here. The commentary (a part of the Federal Reserve Board's Regulation Z) addresses the situation in which the creditor retains a portion of the fee charged to a customer for a service provided by a third party, such as an extended warranty. It provides that "the creditor in such cases may reflect that the creditor has retained a portion of the amount paid to others. For example, the creditor could add to the category 'amount paid to others' language such as '(we may be retaining a portion of this amount).' " 12 C.F.R. Pt. 226, Supp. I § 18(c)(1)(iii)(2). The commentary, being limited to the case in which the fee "is payable in the same amount in comparable cash and credit transactions," id., has no bearing on the claim that the dealers in these cases are hiding a finance charge. But as to the other possible violation, the failure to itemize accurately, the defendants contend that the words "may" and "could" show that they can if they want disclose that they are retaining some of the fee, but that they are not required to do so. In other words, they read the commentary to say: "You may conceal the fact that you are pocketing part of the fee that is ostensibly for a third party, but if you are a commercial saint and would prefer to tell the truth, you may do that too." So interpreted, however, the commentary not only would be preposterous; it would contradict the statute. The only sensible reading of the commentary is as authorizing the dealer to disclose only the fact that he is retaining a portion of the charge, rather than the exact amount of the retention. Even this is a considerable stretch of the statute; and it is as far as, if not farther than, the statute will stretch.

The defendants' only other argument is that they have a safe harbor in form H-3 (another part of Regulation Z), 12 C.F.R. Pt. 226, App. H-3. A disclosure that complies with the form is not actionable. 15 U.S.C. §§ 1604(b), 1640(f); 12 C.F.R. Pt. 226, Supp. I Introduction para. 1. Captioned "Amount Financed Itemization Model Form," the form contains a line for "Amounts paid to others on your behalf," and underneath it a line which reads "$___ to (other)." Compliance with the...

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