Tower v. Moss, No. 78-3659

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TUTTLE, RANDALL and TATE; TATE
Citation625 F.2d 1161
PartiesElla TOWER et al., Plaintiffs, v. Paralee MOSS, Plaintiff-Intervenor-Appellant, v. HOME CONSTRUCTION COMPANY OF MOBILE, INC., Defendant-Appellee.
Docket NumberNo. 78-3659
Decision Date15 September 1980

Page 1161

625 F.2d 1161
Ella TOWER et al., Plaintiffs,
v.
Paralee MOSS, Plaintiff-Intervenor-Appellant,
v.
HOME CONSTRUCTION COMPANY OF MOBILE, INC., Defendant-Appellee.
No. 78-3659.
United States Court of Appeals,
Fifth Circuit.
Sept. 15, 1980.

Page 1163

H. Diana Hicks, New Orleans, La., for plaintiff-intervenor-appellant.

Richard L. Thiry, Mobile, Ala., for defendant-appellee.

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

Before TUTTLE, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiff, Paralee Moss, instituted this action under the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., the Federal Reserve Board Regulations, 12 C.F.R. § 226.1 et seq. (Regulation Z), the Alabama Consumer Finance Act, Ala.Code, § 5-19-1 et seq., and the common law. The district court granted summary judgment in favor of the defendant as to the federal claims on the ground that this particular credit transaction was exempt from the Truth in Lending Act disclosure requirements because in its view the transaction was for "business or commercial purposes" (15 U.S.C. § 1603(1)). Tower v. Home Construction Co. of Mobile, Inc., 458 F.Supp. 112 (S.D.Ala.1978). Additionally, in its discretion the district court simultaneously dismissed the pendent state law claims. Id. at 117. We hold that the purpose of this credit transaction was "primarily for personal, family, household, or agricultural purposes" (15 U.S.C. § 1602(h)), and therefore this credit transaction falls within the ambit of the Truth in Lending Act. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion. 1

History of the Litigation

This suit originated as a class action alleging that the defendant violated the Truth in Lending Act, the Alabama Consumer Finance Act, and the common law of Alabama. On May 20, 1977, the district court certified the plaintiff class. The plaintiff, Paralee Moss, was one of 145 members of the class.

An agreement of settlement was entered in the case and approved by the district court on June 20, 1977. By the terms of the agreement, each class member could choose (1) to opt out of the class or (2) to recover damages from the defendant by a fifteen percent reduction in the amount owed to the defendant or (3) to rescind the mortgage and note and receive from the defendant of all state and federal statutory monetary penalties and common law damages, less the fair value of the goods and services previously delivered by the defendant.

The plaintiff chose the above delineated "rescission alternative", but the defendant challenged the plaintiff's individual claim. On August 18, 1978, the district court entered an order confirming settlement of the individual claims of 143 members of the class: 103 class members received 15% reductions

Page 1164

and 40 class members rescinded and received damages. Only the individual claims of two class members, Ms. Moss and Winnie Harris, remained in dispute after August 18, 1978.

The defendant thereafter filed a motion for summary judgment as to Ms. Moss' individual claim, alleging that her claim was not a consumer credit transaction and was therefore exempt from Truth in Lending Act coverage.

On September 29, 1978, the district court rendered its decision granting the defendant's motion for summary judgment as to the plaintiff's Truth in Lending Act claims and striking the plaintiff's pendent state claims. The district court on that same day entered a separate judgment against the plaintiff. The plaintiff filed a notice of appeal from this judgment on October 26, 1978.

Through inadvertence, however, counsel for the plaintiff did not request Federal Rule of Civil Procedure 54(b) certification from the district court before lodging this appeal. Supplemental Brief of Appellant at 4.

On April 30, 1979, the district court noted that the only remaining individual claim (that of Winnie Harris) had been settled, and ordered that this case in its entirety be dismissed from its active docket. Second Supplemental Record on Appeal at 3. The district court on July 9, 1979 entered an order approving the terms of the parties' settlement of Harris' claim. Id. at 4-5.

This court at oral argument sua sponte questioned its jurisdiction to entertain this appeal in light of the plaintiff's failure to secure Rule 54(b) certification from the district court.

After appellate oral argument, the plaintiff applied to the district court for Rule 54(b) certification nunc pro tunc. On May 30, 1980, the district court issued the nunc pro tunc certification of its September 29, 1978 judgment as requested. Id. at 6-7.

Appellate Jurisdiction

This court has authority to entertain "appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Rule 54(b) provides that in actions involving multiple claims for relief or multiple parties, an order that disposes of one or more but fewer than all of the claims for relief asserted, or completely determines the rights and liabilities of one or more but fewer than all of the parties, does not end the action in the district court and is subject to revision at any time unless the district court has (1) expressly determined that there is no just reason for delay and (2) expressly directed entry of judgment. In the absence of a certification by the district court that meets these two requirements, a partial disposition of a multi-claim or multi-party action is ordinarily not a final appealable order. See generally 10 C. Wright & A. Miller, Federal Practice and Procedure §§ 2653-2660 (1973).

In this case, the plaintiff's counsel did not request Rule 54(b) certification from the district court of its September 29, 1978 order dismissing the plaintiff's complaint while another individual plaintiff's (Winnie Harris's) claim remained to be considered by the district court.

Usually if a Rule 54(b) certification has not been obtained at the time an appeal is filed, the appellate court will dismiss the appeal without prejudice as interlocutory. However, there are some exceptions to the Rule 54(b) certification requirement, all of which are ably and...

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85 practice notes
  • Nelson v. Farm Credit Services of North Dakota, Case No. A4-05-012.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • August 9, 2005
    ...Truth in Lending Act, courts often "examine the transaction as a whole and the purpose for which the credit was extended." Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir.1980) (citing Poe v. First Nat. Bank of DeKalb County, 597 F.2d 895, 896 (5th Cir.1979); Gallegos v. Stokes, 593 F.2d 372, 3......
  • Cobb v. Monarch Finance Corp., No. 95 C 1007.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 29, 1995
    ...101 S.Ct. 2281, 2286-87, 68 L.Ed.2d 803 (1981), or in other words, "consumer" transactions from "commercial" transactions, Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir.1980) (deeming a mortgage for a home improvement loan as a consumer transaction). In the TILA context, we "examine the trans......
  • Sundby v. Marquee Funding Grp., Case No.: 3:19-CV-0390-GPC-AHG
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 14, 2020
    ...a borrower's primary motive." Mauro v. Countrywide Home Loans, Inc., 727 F. Supp. 2d 145, 153 (E.D.N.Y. 2010); accord Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir. 1980) (courts "must examine the transaction as a whole and the purpose for which the credit was extended in order to determine w......
  • Gillis v. U.S. Dept. of Health and Human Services, No. 82-1860
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 19, 1985
    ...Warren, 698 F.2d 179, 184-85 (3d Cir.1983); Jetco Electronic Industries v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165-66 (5th Cir.1984); Anderson v. Allstate Insuran......
  • Request a trial to view additional results
85 cases
  • Sundby v. Marquee Funding Grp., Case No.: 3:19-CV-0390-GPC-AHG
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 14, 2020
    ...a borrower's primary motive." Mauro v. Countrywide Home Loans, Inc., 727 F. Supp. 2d 145, 153 (E.D.N.Y. 2010); accord Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir. 1980) (courts "must examine the transaction as a whole and the purpose for which the credit was extended in order to d......
  • Nelson v. Farm Credit Services of North Dakota, Case No. A4-05-012.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • August 9, 2005
    ...Act, courts often "examine the transaction as a whole and the purpose for which the credit was extended." Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir.1980) (citing Poe v. First Nat. Bank of DeKalb County, 597 F.2d 895, 896 (5th Cir.1979); Gallegos v. Stokes, 593 F.2d 372, 375 (10t......
  • Gillis v. U.S. Dept. of Health and Human Services, No. 82-1860
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 19, 1985
    ...Warren, 698 F.2d 179, 184-85 (3d Cir.1983); Jetco Electronic Industries v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165-66 (5th Cir.1984); Anderson v. Allstate Insuran......
  • Cobb v. Monarch Finance Corp., No. 95 C 1007.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 29, 1995
    ...68 L.Ed.2d 803 (1981), or in other words, "consumer" transactions from "commercial" transactions, Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir.1980) (deeming a mortgage for a home improvement loan as a consumer transaction). In the TILA context, we "examine the trans......
  • Request a trial to view additional results

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