Browning v. Levy's of Tucson

512 P.2d 857, 20 Ariz. App. 325, 1973 Ariz. App. LEXIS 718
CourtCourt of Appeals of Arizona
DecidedJuly 16, 1973
DocketNo. 2 CA-CIV 1360
StatusPublished
Cited by1 cases

This text of 512 P.2d 857 (Browning v. Levy's of Tucson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browning v. Levy's of Tucson, 512 P.2d 857, 20 Ariz. App. 325, 1973 Ariz. App. LEXIS 718 (Ark. Ct. App. 1973).

Opinion

HATHAWAY, Chief Judge.

This appeal - questions the propriety of a summary judgment in favor of plaintiffappellee.

The issues presented to the trial court arose from a revolving charge account agreement entered into between the parties on April 4, 1970. On November 23, 1970, appellee filed a complaint in debt for charges on the revolving charge account against appellant and her husband; defendants filed counterclaims alleging that plaintiff had violated the federal Truth in Lending Act [15 U.S.C.A. § 1640]; that the plaintiff had charged a usurious rate of interest [A.R.S. § 44-1202]; and that the agreement was in violation of the Retail Installment Sales Transactions Act, A. R.S. § 44-6001, et seq. Both parties to this appeal filed motions for summary judgment, appellee on the counterclaim and appellant on the complaint. The trial judge granted appellee’s motion for summary [327]*327judgment on the counterclaim and dismissed appellee’s complaint with prejudice.1 During the course of the proceedings, husband and wife were divorced and the husband filed bankruptcy proceedings upon which the debt to appellee was discharged or paid. Only the wife has appealed from the summary judgment. On appeal appellee maintains that appellant is without standing since appellee is no longer asserting the debt against appellant.

The charge account agreement in question operates for an indefinite period of time, allows the customer to make new purchases on one account, and provides for monthly billing and imposition of the finance charge on the beginning balance of each new billing period without taking into consideration credits or debits subsequent to the beginning balance. Under the agreement, the customer has the privilege of paying the cash price of the purchase on his account without paying any finance charges until the second billing date following the purchase. If not paid by that time he is charged interest of one and one half percent monthly on the beginning balance. Each month the customer is required to pay a minimum amount, dependent on the unpaid balance as set forth in the charge account agreement. Purchases made during the current billing period, if unpaid as of the next billing date, are merged into the account to derive the new unpaid balance for the succeeding period. That the one and one half percent per month exceeds the ten percent allowable interest rate per annum under A.R.S. § 44-1202 2 is without dispute.

We will not discuss appellant’s contention with respect to the alleged exaction of a usurious rate of interest for the reason that the question has become moot since appellee’s complaint has been dismissed with prejudice and the debt is no longer collectible.

DID THE REVOLVING CHARGE ACCOUNT AGREEMENT VIOLATE THE PROVISIONS OF THE “FEDERAL TRUTH IN LENDING ACT?”

Appellant argues that appellee has failed to disclose certain finance charges in violation of the Truth in Lending Act, 15 U.S.C.A. § 1637, and therefore she is entitled to affirmative relief pursuant to 15 U.S.C.A. § 1640.3

She claims a violation of the disclosure requirements since prior to the “revolving charge account agreement,” the parties had entered into a 30-day account with no finance charge. The prior 30-day account balance was attributed to the new account and finance charges were imposed thereon. Specifically, appellant argues that appellee [328]*328failed to disclose that finance charges would be imposed upon this previous 30-day account balance, and consequently appellee violated § 1637(a) of the federal Truth in Lending Act which requires that all disclosures regarding how the account will be handled take place before the first transaction. We cannot agree with appellant’s reasoning for the following reasons. The Truth in Lending Act provides that “before opening an account under an open end consumer credit plan, the creditor shall disclose to the person to whom credit is to be extended each of the following items, to the extent applicable:

1. The conditions under which a finance charge may be imposed, including the time period, if any, within which any credit extended may be repaid without incurring a finance charge.

2. The method of determining the balance upon which' a finance charge will be imposed.

3. The method of determining the amount of the finance charge, including any minimum or fixed amount imposed as a finance charge. “IS U.S.C.A. § 1637(a), (1)(2)(3).”

Appellant admits that she was aware that there was an outstanding balance in the 30-day charge account at the time the revolving charge agreement was entered into and that it would not be paid within the required time period. This admission coupled with the following signed revolving charge agreement nullifies appellant’s argument:

“I also have the privilege of paying in monthly installment [said monthly installments to be in the amount required by Levy’s Flexible Account terms generally in effect at the time of each monthly statement] in which case I agree to pay the time price of purchases now or hereafter charged to my account, which price is the monthly unpaid balance of the cash price thereof and of any overdue time price differential (hereinafter called ‘Finance Charge’ in accordance with Levy’s Flexible Account terms generally in effect at the time of purchase, so long as any part of my balance remains unpaid.” (Emphasis added)

Appellant next argues that appellee failed to clearly inform her of the time period within which any credit extended might be repaid without incurring a finance charge as required by § 1637(a)(1). The revolving charge agreement explained the time period within which any credit extended might be repaid without incurring a finance charge as follows:

“. . . if a bill shows a ‘previous balance’, i. e., the balance owing at the start of the period covered by that bill, any finance charge on that bill will be based on that balance, if payments and credits shown on that bill offset that balance, no finance charge will appear on that bill. If a bill shows a ‘new balance’ i. e., the balance owing at the end of the period covered by that bill, and if you pay that before the end of the billing period in which we send you that bill, no finance charge will appear on the next period thereafter sent to you on this account.”

Appellant points out that the word “offset” is not clear, and therefore the disclosure requirements have not been complied with. Webster’s Third New International Dictionary (Unabridged 1964) when specifically referring to an account, defines “offset” as follows: “Either of two equivalent items on two sides of an account.” We have reviewed the foregoing part of the agreement and find that as a matter of law, it is clear as to its meaning.

Appellant further claims that appellee violated the Act when it failed to disclose that it based its periodic 1inter-est rate on the beginning balance of each new billing period without discounting credits and debits. A further violation of the Act is claimed because the quoted 18% annual interest rate may be higher in some instances where there have been payments subsequent to the beginning balance.

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Bluebook (online)
512 P.2d 857, 20 Ariz. App. 325, 1973 Ariz. App. LEXIS 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browning-v-levys-of-tucson-arizctapp-1973.