Lynch v. Signal Finance Co. of Quincy
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before TAURO; BRAUCHER |
| Citation | 327 N.E.2d 732,367 Mass. 503 |
| Decision Date | 28 April 1975 |
| Parties | William J. LYNCH et al. 1 v. SIGNAL FINANCE CO. OF QUINCY. |
Page 732
v.
SIGNAL FINANCE CO. OF QUINCY.
Decided April 28, 1975.
Page 733
[367 Mass. 504] Ronald B. Poock, Brookline, for plaintiffs.
Howard L. Newell, Boston (Albert M. Newell, Brookline, with him), for defendant.
Before [367 Mass. 503] TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.
[367 Mass. 504] BRAUCHER, Justice.
We are asked to determine what statute of limitations governs liability under G.L. c. 140C, § 10(b), as amended by St.1972, c. 229, § 9, the Truth-in-Lending Act. We hold that an action to enforce that liability, though denominated an action of contract, is an action for a penalty under a penal statute and is subject to G.L. c. 260, § 5, requiring that the action be commenced within one year after the offense is committed. A judge of the Superior Court therefore correctly ruled that the present action was barred, and we affirm.
By writ dated June 4, 1973, the plaintiffs brought an action of contract against the defendant for $20,000 in a District Court. The action was removed to the Superior Court, and a substitute declaration was filed, alleging a loan of $3,000 by the defendant to the plaintiffs on or about November 6, 1969, breaches of the loan agreement by the defendant by failure to make disclosures required by G.L. c. 140C, and 'special' or 'statutory' damages totaling $13,200. The defendant filed a demurrer stating four grounds, one of which was the statute of limitations provided by G.L. c. 260, § 5, and a motion to dismiss on the same ground. The demurrer was sustained and the motion allowed, and the plaintiffs appealed. G.L. c. 231, § 96, as it appears in the Tercentenary Edition. The case was transferred from the Appeals Court to this court under G.L. c. 211A, § 10.
1. Necessity for pleading. Before July 1, 1974, the statute of limitations was to be pleaded by way of defense and could not successfully be made ground for demurrer in an action at law. Aisenberg v. Royal Ins. Co., Ltd., 266 Mass. 543, 546, 165 N.E.2d 682 (1929), and cases cited. Mass.R.Civ.P. 8(c), 12(b), --- Mass. --- (1974). The motion to dismiss was not within G.L. c. 231, § 59, as amended through St.1965, c. 491, § 1. Cf. Mass.R.Civ.P.[367 Mass. 505] 56, --- Mass. --- (1974). It should have been treated as a demurrer. Carmel Credit Union v. Lesser, 344 Mass. 623, 624--625, 183 N.E.2d 725 (1962), and cases cited. No objection appears to have been made on this ground, however, and the point is not argued by the parties. There is no suggestion that the plaintiffs were foreclosed from showing facts to meet the defense of the statute of limitations, and the defendant had not yet waived the defense by failure to assert it in its answer. See G.L. c. 231, § 19; McLearn v. Hill, 276 Mass. 519, 522, 177 N.E. 617 (1931); Alpert v. Radner, 293 Mass. 109, 111, 199
Page 734
N.E. 407 (1936). The matter having been fairly heard and decided, any defect of form could be cured by amendment. G.L. c. 231, §§ 51, 125. We therefore do not pass on the procedures followed. S.J.C. Rule 1:13, 351 Mass. 738 (1967).2. Civil penalties. The Massachusetts Truth-in-Lending Act is closely modeled on the Federal Truth-in-Lending Act. Compare G.L. c. 140C, inserted by St.1969, c. 517, § 1, with Pub.Law (90th Cong.) 321, 82 Stat. 146 (1968), 15 U.S.C. §§ 1601--1665 (1970). The preamble to our act states that its purpose is 'that the laws of the commonwealth relative to the disclosure of consumer credit costs and terms be brought into conformity with federal law and regulations.' It was designed to provide requirements 'substantially similar' to those imposed under the Federal act and thus to make possible an exemption from the Federal act under § 123 of that act, 15 U.S.C. § 1633 (1970). Such an exemption was granted by the Board of Governors of the Federal Reserve System. Supp. III to Reg. Z, 12 C.F.R. (1974) Part 226, 35 Fed.Reg. 10358 (1970).
Section 10(b) of our act provides for the recovery of twice the amount of the finance charge in a consumer credit transaction...
To continue reading
Request your trial
-
Magliacane v. City of Gardner, SJC-12736
...See Stolzoff v. Waste Sys. Int'l, Inc., 58 Mass. App. Ct. 747, 757, 792 N.E.2d 1031 (2003), citing Lynch v. Signal Fin. Co. of Quincy, 367 Mass. 503, 508, 327 N.E.2d 732 (1975). Where there is fraudulent concealment, "we have only attributed knowledge to a plaintiff who had actual knowledge......
-
Carter v. Empire Mut. Ins. Co.
...Hardin v. Cliff Pettit Motors, Inc., 407 F.Supp. 297, 299 (E.D.Tenn.1976). Cf. Lynch v. Signal Finance Co., --- Mass. ---, --- - --- g, 327 N.E.2d 732 (1975). It is true that G.L. c. 140C, § 5(e), inserted by St.1969, c. 517, § 1, allows the creditor, in instances where an item of informati......
-
Demoulas v. Demoulas Super Markets, Inc.
...of wrongdoing was so evident that possession of the means was equivalent to actual knowledge. See Lynch v. Signal Fin. Co. of Quincy, 367 Mass. 503, 507-508, 327 N.E.2d 732 (1975) (statute not tolled where plaintiff, who knew loan terms and extent of lender's disclosures, could have discove......
-
In re Sullivan, Bankruptcy No. 04-19022-JNF.
...had a cause of action against them. See Salois v. The Dime Say. Bank of N.Y., 128 F.3d 20, 27 (1st Cir.1997); Lynch v. Signal Fin. Co., 367 Mass. 503, 507-08, 327 N.E.2d 732 (1975). She did not exercise reasonable diligence in ascertaining whether refinancing her property was The Debtor's a......
-
Magliacane v. City of Gardner, SJC-12736
...See Stolzoff v. Waste Sys. Int'l, Inc., 58 Mass. App. Ct. 747, 757, 792 N.E.2d 1031 (2003), citing Lynch v. Signal Fin. Co. of Quincy, 367 Mass. 503, 508, 327 N.E.2d 732 (1975). Where there is fraudulent concealment, "we have only attributed knowledge to a plaintiff who had actual knowledge......
-
Carter v. Empire Mut. Ins. Co.
...Hardin v. Cliff Pettit Motors, Inc., 407 F.Supp. 297, 299 (E.D.Tenn.1976). Cf. Lynch v. Signal Finance Co., --- Mass. ---, --- - --- g, 327 N.E.2d 732 (1975). It is true that G.L. c. 140C, § 5(e), inserted by St.1969, c. 517, § 1, allows the creditor, in instances where an item of informati......
-
Demoulas v. Demoulas Super Markets, Inc.
...of wrongdoing was so evident that possession of the means was equivalent to actual knowledge. See Lynch v. Signal Fin. Co. of Quincy, 367 Mass. 503, 507-508, 327 N.E.2d 732 (1975) (statute not tolled where plaintiff, who knew loan terms and extent of lender's disclosures, could have discove......
-
In re Sullivan, Bankruptcy No. 04-19022-JNF.
...had a cause of action against them. See Salois v. The Dime Say. Bank of N.Y., 128 F.3d 20, 27 (1st Cir.1997); Lynch v. Signal Fin. Co., 367 Mass. 503, 507-08, 327 N.E.2d 732 (1975). She did not exercise reasonable diligence in ascertaining whether refinancing her property was The Debtor's a......