Correy Peters, on Behalf of Himself and All Others Similarly Situated v. Jim Lupient Oldsmobile Co., a Minnesota Corporation

Eighth Circuit

Correy Peters, on Behalf of Himself and All Others Similarly Situated v. Jim Lupient Oldsmobile Co., a Minnesota Corporation

220 F.3d 915, 2000 U.S. App. LEXIS 19177, 2000 WL 1133841

CourtCourt of Appeals for the Eighth Circuit

DecidedAugust 11, 2000

Docket99-2783

StatusPublished

Cited by40 cases

This text of 220 F.3d 915 (Correy Peters, on Behalf of Himself and All Others Similarly Situated v. Jim Lupient Oldsmobile Co., a Minnesota Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Correy Peters, on Behalf of Himself and All Others Similarly Situated v. Jim Lupient Oldsmobile Co., a Minnesota Corporation, 220 F.3d 915, 2000 U.S. App. LEXIS 19177, 2000 WL 1133841 (8th Cir. 2000).

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MAGILL, Circuit Judge.

Correy Peters filed suit against Jim Lu-pient Oldsmobile, Inc. (Lupient) alleging violations of the Truth in Lending Act (TILA) and Minnesota state laws. The district court¹ granted Lupient’s motion for summary judgment on the TILA claim and dismissed the state law claims without prejudice. Peters only appeals the TILA claim. We AFFIRM.

On April 25, 1997, Peters bought a 1989 Ford Probe from Terry Rook, a used car salesman for Lupient. Along with the car, Rook sold Peters credit life and disability insurance for premiums of $65.82 and $348.82, respectively. Peters stated he “had no problem with” the premiums. These premiums were paid to American National Insurance Co., which then paid $183.30 in commissions to Lupient and Rook. Peters’s purchase was financed through TCF Financial Services, Inc.’ (TCF). TCF reported both premiums on the contract, however, the payment of premiums back to Lupient was not disclosed. TCF repossessed the automobile in 1998 after Peters stopped making payments.

Rather than disclose that, commissions were being paid to Lupient on the insurance policies, the contract listed the total amount of the premiums as amounts paid to third parties on Peters behalf.. All of our sister circuits that have examined whether the retention by a car dealer of any amount of a fee that is purportedly being paid to a third party is a violation of TILA, 15 U.S.C. § 1638(a)(2)(B)(iii), have answered in the affirmative. . See Jones v. Bill Heard Chevrolet, Inc., 212 F.3d 1356 (11th Cir.2000) (finding failure to reveal retention by a car dealer of part of the charge for an extended warranty violated § 1638(a)(2)(B)(iii)); Green v. Levis Motors, Inc., 179 F.3d 286, 294 (5th Cir.1999) (finding failure to reveal retention by a car dealer of part of the licensing fee violated § 1638(a)(2)(B)(iii)); Gibson v. Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7th Cir.1997) (finding failure to reveal retention by a car dealer of part of the charge for an extended warranty violated § 1638(a)(2)(B)(iii)). As this issue was not fully briefed by the parties and the issue of damages fully resolves this suit, we decline to address whether Lupient violated the disclosure requirements of § 1638(a)(2)(B)(iii).

Peters concedes that the only remedy for failing to make this type of disclosure as required by § 1638(a)(2)(B)(iii) is actual damages. See 15 U.S.C. § 1640 (stating statutory damages are only available for violations of § 1638(a)(2) in those cases where the amount financed was not disclosed). Peters alleges he suffered actual damages in the form of the commission paid to Lupient. Actual damages are traditionally defined as “an amount awarded to a complainant to compensate for a proven injury or loss.” Black’s Law Dictionary 394 (7th ed.1999) (emphasis added). No circuit has examined what constitutes actual damages under § 1640, however, the reported district court cases have held the plaintiff must show a real loss or injury caused by the defendant. See. e.g., Cirone-Shadow v. Union Nissan of Waukegan, 955 F.Supp. 938, 943 (N.D.Ill.1997); Barlow v. Evans, 992 F.Supp. 1299, 1309-10 (M.D.Ala.1997). This court will apply the [917]*917traditional definition to the term actual damages as it is used in § 1640, and require that a plaintiff prove an injury or loss.

In order to establish these actual damages, courts have required the plaintiff to show the TILA violation was the proximate cause of any actual damages. See Cirone-Shadow, 955 F.Supp. at 943. In order to show causation, a plaintiff must show that: (1) he read the TILA disclosure statement; (2) he understood the charges being disclosed; (3) had the disclosure statement been accurate, he would have sought a lower price; and (4) he would have obtained a lower price. See Anderson v. Rizza Chevrolet, Inc., 9 F.Supp.2d 908, 913 (N.D.Ill.1998). Peters does not contest that this is the proper analysis for determining an actual damages recovery.

Peters fails to meet the fourth element of this analysis. The record reveals no evidence that Peters would have received a lower premium on the two insurance policies from any other insurance provider or that he suffered any actual damages. Having failed to present any such evidence, Peters cannot prove causation and thus suffered no actual damages. As the only remedy for a violation of § 1638(a)(2)(B)(iii) is actual damages and Peters cannot show any actual damages, the TILA claim must fail.

For the foregoing reasons, we affirm the district court.

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MAGILL, Circuit Judge.

Correy Peters filed suit against Jim Lu-pient Oldsmobile, Inc. (Lupient) alleging violations of the Truth in Lending Act (TILA) and Minnesota state laws. The district court¹ granted Lupient’s motion for summary judgment on the TILA claim and dismissed the state law claims without prejudice. Peters only appeals the TILA claim. We AFFIRM.

On April 25, 1997, Peters bought a 1989 Ford Probe from Terry Rook, a used car salesman for Lupient. Along with the car, Rook sold Peters credit life and disability insurance for premiums of $65.82 and $348.82, respectively. Peters stated he “had no problem with” the premiums. These premiums were paid to American National Insurance Co., which then paid $183.30 in commissions to Lupient and Rook. Peters’s purchase was financed through TCF Financial Services, Inc.’ (TCF). TCF reported both premiums on the contract, however, the payment of premiums back to Lupient was not disclosed. TCF repossessed the automobile in 1998 after Peters stopped making payments.

Rather than disclose that, commissions were being paid to Lupient on the insurance policies, the contract listed the total amount of the premiums as amounts paid to third parties on Peters behalf.. All of our sister circuits that have examined whether the retention by a car dealer of any amount of a fee that is purportedly being paid to a third party is a violation of TILA, 15 U.S.C. § 1638(a)(2)(B)(iii), have answered in the affirmative. . See Jones v. Bill Heard Chevrolet, Inc., 212 F.3d 1356 (11th Cir.2000) (finding failure to reveal retention by a car dealer of part of the charge for an extended warranty violated § 1638(a)(2)(B)(iii)); Green v. Levis Motors, Inc., 179 F.3d 286, 294 (5th Cir.1999) (finding failure to reveal retention by a car dealer of part of the licensing fee violated § 1638(a)(2)(B)(iii)); Gibson v. Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7th Cir.1997) (finding failure to reveal retention by a car dealer of part of the charge for an extended warranty violated § 1638(a)(2)(B)(iii)). As this issue was not fully briefed by the parties and the issue of damages fully resolves this suit, we decline to address whether Lupient violated the disclosure requirements of § 1638(a)(2)(B)(iii).

Peters concedes that the only remedy for failing to make this type of disclosure as required by § 1638(a)(2)(B)(iii) is actual damages. See 15 U.S.C. § 1640 (stating statutory damages are only available for violations of § 1638(a)(2) in those cases where the amount financed was not disclosed). Peters alleges he suffered actual damages in the form of the commission paid to Lupient. Actual damages are traditionally defined as “an amount awarded to a complainant to compensate for a proven injury or loss.” Black’s Law Dictionary 394 (7th ed.1999) (emphasis added). No circuit has examined what constitutes actual damages under § 1640, however, the reported district court cases have held the plaintiff must show a real loss or injury caused by the defendant. See. e.g., Cirone-Shadow v. Union Nissan of Waukegan, 955 F.Supp. 938, 943 (N.D.Ill.1997); Barlow v. Evans, 992 F.Supp. 1299, 1309-10 (M.D.Ala.1997). This court will apply the [917]*917traditional definition to the term actual damages as it is used in § 1640, and require that a plaintiff prove an injury or loss.

In order to establish these actual damages, courts have required the plaintiff to show the TILA violation was the proximate cause of any actual damages. See Cirone-Shadow, 955 F.Supp. at 943. In order to show causation, a plaintiff must show that: (1) he read the TILA disclosure statement; (2) he understood the charges being disclosed; (3) had the disclosure statement been accurate, he would have sought a lower price; and (4) he would have obtained a lower price. See Anderson v. Rizza Chevrolet, Inc., 9 F.Supp.2d 908, 913 (N.D.Ill.1998). Peters does not contest that this is the proper analysis for determining an actual damages recovery.

Peters fails to meet the fourth element of this analysis. The record reveals no evidence that Peters would have received a lower premium on the two insurance policies from any other insurance provider or that he suffered any actual damages. Having failed to present any such evidence, Peters cannot prove causation and thus suffered no actual damages. As the only remedy for a violation of § 1638(a)(2)(B)(iii) is actual damages and Peters cannot show any actual damages, the TILA claim must fail.

For the foregoing reasons, we affirm the district court.

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