Conrad v. Beneficial Finance Co. of New York, Inc.

57 A.D.2d 91, 394 N.Y.S.2d 923, 1977 N.Y. App. Div. LEXIS 10484
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 7, 1977
StatusPublished
Cited by7 cases

This text of 57 A.D.2d 91 (Conrad v. Beneficial Finance Co. of New York, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conrad v. Beneficial Finance Co. of New York, Inc., 57 A.D.2d 91, 394 N.Y.S.2d 923, 1977 N.Y. App. Div. LEXIS 10484 (N.Y. Ct. App. 1977).

Opinion

Dillon, J.

This action is founded upon plaintiffs’ claim that the disclosure statement furnished them by defendant, a consumer finance agency, in connection with a loan made in June, 1974, failed to comply with the Federal Truth in Lending Act (US Code, tit 15, § 1601 et seq.) and the regulations promulgated thereunder (Regulation Z, 12 CFR 226.1 et seq.). Plaintiffs moved for summary judgment on their first cause of action alleging that the disclosure statement failed to set forth defendant’s right of acceleration in violation of section 1639 (subd [a], par [7]) of the act and section 226.8 (b) (4) of the regulations; on their third cause of action alleging that the disclosures were not made in a meaningful manner in violation of subdivision [a] of section 1631 of the act and section 226.6 (a) of the regulations; and on their fourth cause of action alleging that the defendant’s failures to make the requisite [93]*93disclosures rendered the loan void pursuant to section 358 of the Banking Law.

Special Term concluded that the failure to disclose the acceleration provision constituted a statutory violation and •awarded plaintiffs a penalty of $1,000 together with reasonable counsel fees pursuant to section 1640 (subd [a]) of title 15 of the United States Code. Plaintiffs’ motion for summary judgment on the third and fourth causes of action was denied. Both parties appeal.

With respect to defendant’s failure to set forth the acceleration provision, the act requires disclosure of "default, delinquency, or similar charges payable in the event of late payments” (US Code, tit 15, § 1638, subd [a], par [9]). Similarly, the regulations call for disclosure of "[t]he amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments.” (12 CFR 226.8 [b] [4].) The issue then is whether the acceleration clause represents a default, delinquency, or similar charge.

The staff of the Federal Reserve Board takes the view that an acceleration clause is not a "charge” payable on default unless the method for rebating unearned portions of the finance charge yields different results upon acceleration by the creditor than upon prepayment by the debtor. When the creditor does not rebate the same amount of finance charges upon acceleration as it does upon prepayment, "any amounts retained beyond those which would have been rebated under the disclosed rebate provisions represent a 'charge’ which should be disclosed under § 226.8 (b) (4).” (Federal Reserve Board Letter No. 851, 5 CCH Consumer Credit Guide, par 31,173 [Oct. 22, 1974].) This interpretation of the requirements of sections 226.8 (b) (4) and 226.8 (b) (7) has been specifically rejected by the Fifth Circuit in Martin v Commercial Securities Co. (539 F2d 521, 529), which held that "in the absence of a regulation requiring it, failure to disclose an acceleration clause and the lender’s rebate policy with respect thereto in an installment credit transaction does not give rise to a claim for statutory damages.” Application of Martin here, of course, would necessarily require reversal of the judgment granted at Special Term.

The Third Circuit, however, in Johnson v McCrackin-Sturman Ford (527 F2d 257) adopted the Federal Reserve Board staff’s interpretation. Noting that acceleration is essentially a prepayment, the Johnson court found that where the method [94]*94for rebate on acceleration was the same as that for voluntary prepayment, "it was unnecessary to include a separate provision delineating the method of rebate in the event of acceleration” (p 269, n 28). In such a circumstance, acceleration of the loan upon a failure to make payments does not result in a "’default, delinquency, or similar charge’” (p 268) and there is no need for disclosure.

Here the loan contract prescribes the same rebate method for refunding unearned precomputed interest upon acceleration as upon prepayment, and to that extent we find that the acceleration is not a "charge”. Plaintiffs argue, however, that disclosure is required because the formula for rebating insurance premiums upon acceleration results in a greater amount retained by the creditor than upon prepayment.

This assertion necessarily presents a question as to whether defendant complied with section 1605 (subd [b]) of title 15 of the United States Code and 12 CFR 226.4 (a) (5) (ii). Essentially, these sections provide that insurance charges shall be included in finance charges unless the debtor gives specific written indication of his desire for insurance coverage. Whether such an indication was given here is specifically at issue in plaintiffs’ second cause of action on which no motion for summary judgment was made. Moreover, the issue has not been directly addressed by the parties in this appeal and cannot now be resolved. Thus, whether we apply the broad rule of Martin v Commercial Securities Co. (539 F2d 521, supra) or, in the circumstances of this case, the rationale of Johnson v McCrackin-Sturman Ford (527 F2d 257, supra), plaintiffs are not entitled to summary judgment on their first cause of action. It is unnecessary to have further proceedings thereon, however, in view of our determination with respect to plaintiffs’ third cause of action (see Mirabal v General Motors Acceptance Corp., 537 F2d 871, 880).

The issue presented in the third cause of action is whether defendant’s statement of disclosure sets forth the items which must be disclosed clearly and conspicuously (see US Code, tit 15, § 1631) and in meaningful sequence (see 12 CFR 226.6 [a]). We are guided in the resolution of this question by the purpose of the Truth in Lending Act, which is "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” (US Code, tit 15, § 1601). Additionally, the phrase "in meaningful [95]*95sequence” has been interpreted to mean that items which are arithmetically related should be placed "within a reasonable proximity to each other, not mixed with items which are irrelevant to a progression of arithmetical computations or thought * * * so that the customer will not be required to search for any arithmetical items which should logically follow a previous one.” (Federal Reserve Board Public Position Letter No. 780, 5 CCH Consumer Credit Guide, par 31,102 [April 10, 1974].) We attach great weight to this interpretative pronouncement of the board (see Mourning v Family Pub. Serv., 411 US 356, 365; Udall v Tallman, 380 US 1, 16-17, reh den 380 US 989; Philbeck v Timmers Chevrolet, 499 F2d 971, 976-977).

Our examination of defendant’s disclosure statement shows that it neither attains the purpose nor complies with the letter of the act and the regulations. The attempt to understand this form requires one to search for related items, and even then uncertainty and confusion remain as the result of its desultory composition. The disclosure statement is appended hereto and we note that it is substantially identical to that printed in Allen v Beneficial Finance Co.

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57 A.D.2d 91, 394 N.Y.S.2d 923, 1977 N.Y. App. Div. LEXIS 10484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conrad-v-beneficial-finance-co-of-new-york-inc-nyappdiv-1977.