Ivey v. United States Dept. of Housing & Urban Dev.

• Decision Date: 30 March 1977
• Docket Number: Civ. A. No. C75-61A.
• Citation: 428 F. Supp. 1337
• Parties: Jettie IVEY v. UNITED STATES of America DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al.
• Court: U.S. District Court — Northern District of Georgia

428 F. Supp. 1337

Jettie IVEY v. UNITED STATES of America DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al.

Civ. A. No. C75-61A.

United States District Court, N. D. Georgia, Atlanta Division.

March 30, 1977.

Richard K. Greenstein, Atlanta, Ga., for plaintiff.

Richard A. Horder, Asst. U.S. Atty., Atlanta, Ga., for defendants. 15 U.S.C.A. § 1635.

ORDER

JAMES C. HILL, Circuit Judge.

This Truth-in-Lending action is before the Court on the recommendations of the Special Master. The Special Master recommended that the motions by plaintiff and defendants for summary judgment be partially granted and partially denied. More specifically, the Special Master recommended that defendants' security interest in plaintiff's home be terminated; that plaintiff be declared to have no further obligations to defendants; that defendants be declared to have no obligations to make any refund to plaintiff; that plaintiff be denied attorney's fees; that defendants take nothing on their counterclaim; and that plaintiff recover her costs of this action.

On January 10, 1975, plaintiff filed this action for declaratory, injunctive and other relief to enforce rights secured by Title I of the Federal Consumer Credit Protection Act, as amended, 15 U.S.C.A. § 1601 et seq. (Truth in Lending Act). On December 10, 1969, plaintiff, Jettie Ivey, entered into a credit transaction with defendants, United States of America and the Department of Housing and Urban Development (HUD), in order to obtain a loan under section 312 of the Housing Act of 1964, as amended, 42 U.S.C.A. § 1452b. A security interest was acquired by defendants in real property which was used as the residence of plaintiff. In connection with the consummation of this loan, defendants furnished plaintiff a "Truth in Lending Disclosure Statement." The disclosure statement recited that the "Total of Payments" would be $12,055.20 payable in 240 consecutive monthly payments. The first payment of $61.53 was due on February 1, 1970, and thereafter, 239 payments of $50.23 were due the first of each month. Also, as a part of plaintiff's loan contract with defendants, plaintiff received notice¹ of her right to rescind the transaction in accordance with section 125² of the Truth in Lending Act, as amended, 15 U.S.C.A. § 1635.

On July 16, 1974, plaintiff, through an attorney, notified defendants of her desire to rescind the loan transaction between herself and defendants. The letter of notification³ recited that numerous disclosures required under the Truth in Lending Act were never given or erroneously stated and requested that defendants take all action necessary to reflect the termination of the security interest held by defendants in plaintiff's home. Defendants made no response to this letter notification. Instead, defendants insisted that the loan was a valid transaction and that they would proceed to effect collection.⁴ As defendants were in the process of taking actions which would have lead to foreclosure, this suit was instituted by plaintiff.

Defendants raise three objections to the recommendations of the Special Master. First, defendants contend that the Special Master erred in concluding that a "material disclosure" means pertinent rather than important and that an error of $11.30 in the total of payments was a material nondisclosure. Second, defendants object to the finding that they were guilty of untoward conduct and thus, not entitled to have rescission of the loan conditioned on the refund by plaintiff of the amount of money loaned to her. Finally, defendants object to the recommendations of the Special Master with regard to the remedies afforded. Plaintiff, in essence, also objects to a portion of the recommendation with regard to remedies and objects to the denial of her prayer for attorney's fees.

MATERIAL DISCLOSURES

One defense relied upon in this rescission case derives from certain language used in section 125 of the Truth in Lending Act, as amended, 15 U.S.C.A. § 1635, which provides that

the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, . . ." (emphasis added).

This language is contrasted with the language used in the civil liability section, as amended, 15 U.S.C.A. § 1640, which makes no reference to material disclosures. The first issue thus raised in this case, and the one which the Court finds determinative, is the meaning of "material disclosures" and its application to the case at bar.

The Special Master concluded that the word "material" as used in the rescission section means pertinent rather than important. The Special Master found no case dealing explicitly with the meaning of "material disclosures" under section 125.⁵ The Special Master principally relied upon the broad language used in several appellate decisions, in combination with the fact that no indication has ever been given in any opinion that a different standard applies to determining a violation under the different sections, in concluding that "material" merely means pertinent. For the reasons hereinafter stated, this Court is persuaded to the contrary.

It is certainly correct that courts have painted with a broad stroke in reciting the shortcomings of creditors vis-a-vis the rescission remedy. Thus, in Powers v. Sims and Levin, 542 F.2d 1216 (4th Cir. 1976), the court speaks of the "required disclosures" and finds that the failure to disclose the right to rescind within three days (the defendant gave two days) to be a violation; in LaGrone v. Johnson, 534 F.2d 1360 (9th Cir. 1976), the court noted the requirement of "material" omissions and concluded that the failure to set out the acceleration clause in the broker's statement (though set out in the note and deed of trust), the failure to label and disclose the amount financed in the broker's statement (though the information from which the amount could be readily calculated was disclosed), and the failure to clearly delineate additional information — though not egregious — were violative of the rescission section; in Ljepava v. M.L.S.C. Properties, Inc., 511 F.2d 935 (9th Cir. 1975), the court speaks of "statutorily inadequate" disclosures and finds that the gross understatement of the annual percentage rate, the failure to disclose how charges for late payments were to be calculated, the failure to explain each element of the finance charge, the failure to indicate that interest began to accrue one day before the transaction was consummated, and the failure to give the total of the prepaid finance charge were violative of section 125; in Sosa v. Fite, 498 F.2d 114 (5th Cir. 1974), the court speaks of the failure to make "detailed disclosures of credit terms" and the "full panoply of statutorily required information" without reference to any specific violations; and in Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir. 1974), the court makes note of the required "usual disclosures" and the "requisite information" and notes that the defendant admittedly failed "to make certain disclosures of credit terms and rescission rights." See also Charnita v. Federal Trade Commission, 479 F.2d 684 (3rd Cir. 1973) ("required disclosures"); Gerasta v. Hibernia National Bank, 411 F.Supp. 176 (E.D.La.1975); Pedro v. Pacific Plan of California, 393 F.Supp. 315 (N.D.Cal.1975) ("material disclosures"). However a review of these cases and others reveals that in discussing the rescission remedy not a single case focuses on the statutory requirement that a creditor fail to make a "material disclosure." In addition, a survey of the actual violations which were found to exist in these cases shows mostly multiple non-disclosures or failure to disclose the right to rescind itself. Thus, the Court is of the opinion that the broad language casually used in numerous opinions is of little value in determining the meaning of "material" in section 125.

The mere fact that section 125 refers to "material" disclosures is itself of significance. In contrast, the civil liability section which imposes a limitation on recovery has no synonymous language, merely imposing liability for the failure "to disclose." The 1974 amendment to section 125 clearly demonstrates that the use of the word "material" was not inadvertent as the Congress again refers to "any other material disclosures." 88 Stat. 1517, 1519, 15 U.S.C.A. § 1635(f). Thus, the Court is persuaded that the mere failure "to disclose" information required by the Truth in Lending Act or the regulations is not sufficient to create liability under section 125. Liability under section 125 arises only if a "material disclosure" is not made.

The legislative history of section 125 is rather scant. On this topic the court in Eby v. Realty, Inc. supra, noted:

Neither the words of the statute nor the legislative history refer to the intended relationship between the rescission and civil liability provisions. Doubtless, this is because the rescission provision was introduced late in the legislative process. After the Senate had passed one version of the Truth in Lending Act, another version was presented before the House. During the debate on that bill, Congressman Cahill proposed an amendment requiring lenders to make the necessary disclosures three days earlier than usual if a security interest was to be retained or acquired in the borrower's home. Apparently, failure to comply would have subjected the creditor to civil liability equal to twice the finance charge, just like the failure to disclose any other information. The amendment was adopted without debate. 114 Cong.Rec. 1611 (1968). With no explanation the conference committee altered this to its present form to provide the limited right of rescission.

495 F.2d at 651.

Thus, while the court in Eby recognized the "limited...