James v. Home Const. Co. of Mobile, Inc., 78-3099

• Citation: 621 F.2d 727
• Decision Date: 15 July 1980
• Docket Number: No. 78-3099,78-3099
• Parties: Roscoe JAMES, Individually and as Administrator of the Estate of Rebecca G. James and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. HOME CONSTRUCTION COMPANY OF MOBILE, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 727

621 F.2d 727

Roscoe JAMES, Individually and as Administrator of the

Estate of Rebecca G. James and on behalf of all

persons similarly situated, Plaintiffs-Appellants, v. HOME CONSTRUCTION COMPANY OF MOBILE, INC., et al.,

Defendants-Appellees.

No. 78-3099.

United States Court of Appeals, Fifth Circuit.

July 15, 1980.

H. Diana Hicks, New Orleans, La., Henry H. Caddell, Legal Services Corp. of Alabama, Montgomery, Ala., Richard J. Ebbinghouse, Legal Services Corp., Selma, Ala., Arthur J. Madden, III, Mobile, Ala., for plaintiffs-appellants.

Richard L. Thiry, Mobile, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before TUTTLE, RANDALL and TATE, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from a granting of the defendant's motion to dismiss in a Truth-in-Lending Act class action. The district court based its dismissal on two grounds that a class action was inappropriate for 15 U.S.C. § 1635 actions and that a successor obligor could not bring a Truth-in-Lending action. We reverse the judgment of the trial court as to the successorship theory but hold that the plaintiff cannot bring this action as a class action.

Rebecca James, the mother of the plaintiff here, contracted with the defendant in 1973 to have repairs and improvements done on her home. According to the trial court, although Mrs. James was told by an agent of the defendants at that time that the cost would be $5,322.00, she received a statement in August 1973, reflecting that she owed $7,509.60 on the deferred payment price. In accordance with the credit extension, Mrs. James made 36 monthly payments of $125.16 before her death in July, 1976. The plaintiff, her son and administrator of the estate, made several more payments after her death. However in May 1977, Mr. James through his attorney, gave notice to the defendants of recission and cancellation of the contract and demanded payment of all sums due to him under federal and state statutes.

Mr. James then initiated this suit, seeking relief under 15 U.S.C. § 1635(a), ¹ and sought class certification. The defendant, Home Construction Company, Inc. (Home), first moved to dismiss the suit on the grounds that the three-year statute of limitations barred the suit. The district court denied this motion. Home then moved to dismiss the suit on the grounds that a survivor could not bring a recission action and that a class action was improper for § 1635 suits. The district court granted this motion and dismissed the suit. This appeal ensued.

The defendant argues first again that the three-year statute of limitations bars this suit. Section 1635(f), the section in question, was passed subsequent to when this cause of action arose. The appellee urges that the applicable limitation period began to run when the action arose (June 11, 1973), not when this section was passed (October 22, 1974), and therefore the suit is barred.

Like the district court, we reject the appellee's contention for several reasons. While we note that several district courts have ruled in similar cases that the limitations period begins to run on the day the contract was signed, we think those cases were wrongly decided. See Jamerson v. Miles, 421 F.Supp. 107 (N.D.Tex.1976); Rodriguez v. County Lumber and Supply Co., 460 F.Supp. 810 (W.D.Ill.1978).

We reach this decision for several reasons. In Jamerson v. Miles, the district court reasoned that 15 U.S.C. § 1635(f) was not a true statute of limitations, but rather was a statute which limited a substantive statutorily created right to rescind and therefore could not be applied prospectively. In Jamerson, the court relied heavily on the fact that Section 1635 created and then limited rights which did not exist at common law.

We see no reason to continue to abide by obsolete judicial dicta which have little relevance to contemporary thought. ² The fact that § 1635 is a statutorily created right and not a common law one should make little difference in a consideration of whether or not this cause of action survives. Rather, the key inquiry in a situation like this one centers on what was the Congressional intent in passing § 1635(f). We think it clear that Congress meant to have the statute applied prospectively. First, the Truth-in-Lending Act, a remedial act, has usually been given a broad liberal interpretation since it is assumed that was the intent of Congress. Littlefield v. Walt Flanagan & Co., 498 F.2d 1133 (10th Cir. 1974). Second, the Conference Committee report on the Truth-in-Lending Act amendments of which § 1635(f) were a part, described these amendments as "a series of basically technical amendments designed to improve the administration of the Truth in Lending Act." H.R.Conf.Rep.No.93-1429, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News 1974, pp. 6119, 6152. This language strongly suggests that Congress did not intend to limit with these amendments those substantive rights that already existed under the Act. For these reasons, we hold that given our interpretation of the Congressional intent in passing § 1635(f), it should be applied prospectively. See also Clemmer v. Liberty Fin. Planning, Inc., 467 F.Supp. 272 (W.D.N.C.1979).

However, we reverse the district court's judgment dismissing the suit on the grounds that the right to rescind cannot pass to a survivor. In reversing that judgment, we find ourselves in agreement with the reasoning in the recent decision of the Seventh Circuit Court of Appeals in Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (7th Cir. 1980) which found that a cause of action under § 1640 of the Act survives in favor of the administrator of the estate of a deceased plaintiff.

The first question to be decided in a consideration of this issue is whether the survival question is a matter of federal or state law. See Wright, the Law of Federal Courts, 278-286 (1976). As noted in Smith, the question of survival of a federal cause of action has usually been described as a question of federal common law, in the absence of an expression of contrary intent. Smith at 413; Bowles v. Farmers National Bank of Lebanon, Ky., 147 F.2d 425 (6th Cir. 1945); Heikkila v. Barber, 308 F.2d 558 (9th Cir. 1962). Cf. 7A Wright and Miller, Federal Practice and Procedure, § 1952 at 642 (1972). We do not find such an expression of contrary intent here. We therefore hold that this issue is to be decided according to federal common law.

Looking at that common law, we find that very few courts have considered the question of survivability under any sections of the Truth-in-Lending Act. The only Circuit Court to consider any portion of the statute was the Seventh Circuit in Smith. ³ We find that a Truth-in-Lending Act action under § 1635 survives the death of the plaintiff. ⁴ Traditionally, the rule has been that actions for penalties do not survive the death of the plaintiff. Schreiber v. Sharpless, 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65 (1884). Therefore we must determine whether the remedy that is part of the action under the Truth-in-Lending Act is a penal sanction. In Murphy v. Household Finance Corp., 560 F.2d 206 (6th Cir. 1977), the Sixth Circuit Court of Appeals focused on three factors in its analysis of whether a particular statutory provision was penal. It looked at:

(a) whether the purpose of the action was to redress individual wrongs or wrongs to the public;

(b) whether the recovery ran to the individual or public;

(c) whether the recovery was disproportionate to the harm suffered. ⁵

Id. at 209.

A consideration of the first factor the purpose of the action involves a basic analysis of the purposes of the entire Truth-in-Lending Act. It is true that in some senses the purpose of the Act and of this action is to redress both individual wrongs and wrongs to the public, in the sense of redressing a broad social problem. However the first section of the Act states:

§ 1601. Congressional findings and declaration of purpose

The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.

In this statement of purpose, Congress indicated that the primary purpose of the Act is to enable the individual consumer to be able to credit shop and avoid the uninformed use of credit. As the Seventh Circuit Court of Appeals noted in Smith, what is mandated are not conditions of credit, but only disclosures, leaving it up to each consumer to select his own credit. Smith at 414. As to the first factor discussed in Murphy, we find that the primary purpose of this action is to redress individual wrongs.

The second factor whether the recovery runs to the individual or the public is obviously closely related to the first. Section 1635's recission remedy is an individual remedy, not a broad one. As to this factor, we find that the recovery runs to the individual.

The third factor the relationship of the recovery to the harm also provides support for the proposition that § 1635 is not a penal provision. As noted by this Court in Sosa v. Fite, 498 F.2d 114, 119 (5th Cir., 1974), the purpose of the recission remedy is to restore the parties, as much as possible, to the status quo ante. See also Mitchell v. Security Inv. Corp. of Palm Beaches, 464 F.Supp. 650, 653 (S.D.Fla.1979).

We also find support for our conclusion that this section of the Act is not penal in the tendency of courts that have interpreted the Truth-in-Lending Act to emphasize the remedial character of the Act....