Dengel v. Hibernia National Bank

539 So. 2d 947, 1989 La. App. LEXIS 237, 1989 WL 14091
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1989
DocketNo. 88-CA-0920
StatusPublished
Cited by4 cases

This text of 539 So. 2d 947 (Dengel v. Hibernia National Bank) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dengel v. Hibernia National Bank, 539 So. 2d 947, 1989 La. App. LEXIS 237, 1989 WL 14091 (La. Ct. App. 1989).

Opinion

BARRY, Judge.

Carl Dengel appeals a judgment in favor of Hibernia National Bank in his suit under the Louisiana Consumer Credit Law [LCCL] for a refund of overcharges, penalties and attorney’s fees.

BACKGROUND

On September 16, 1980 Dengel signed a $130,656.00 promissory note and disclosure statement as required by the Federal Truth-In-Lending Act (15 U.S.C. § 1601 et seq.) and Regulation Z (12 C.F.R. § 226.2 b (1980)). The left side of the document specifies 120 monthly payments of $1,088.80 commencing October 25, 1980 with the last payment due on September 25, 1990. Section F provides that if the note is prepaid in full the borrower is entitled to a rebate of the unearned precomputed interest based on the Rule of 78’s after deducting a $25.00 prepayment charge if less than one-half of the term had expired. The loan was se[948]*948cured by a second mortgage on Dengel’s immovable property at 1917-19 Peniston Street. The note declares that it is to be governed under LCCL. Dengel acknowledged receipt of a copy of the Truth in Lending disclosure statement.

Hibernia’s disclosure statement shows the loan proceeds were $67,750.00 and other charges of $135.00 made the total amount financed $62,885.00. The precomputed finance charge (interest) was listed at $67,771.00. The annual percentage rate [APR] was 14.75% and all payments (amount financed plus finance charge) would total $130,656.00. Both sides stipulated that Dengel paid the loan in full after three years on September 14, 1983.

In his petition Dengel alleges the precomputed 14.75% interest should amount to $62,297.00, not the listed $62,771.00 and claims an overcharge of $474.00. He says. Hibernia erroneously charged him $250.47 for the odd nine days of interest on the first monthly payment and added that amount to the amount financed before computing the interest due.

On August 24,1983 Dengel wrote a certified letter to Hibernia, return receipt requested, and advised that he previously hand delivered to the bank an amortization schedule which showed his monthly payment should have been $1,084.85 instead of $1,088.80. He incorrectly noted the finance charge as $67,750.00 instead of $67,885.00. He claimed the interest rate was miscalculated and resulted in an overcharge of $3.95 on each of the 120 payments, or $474.00. Dengel contends he made formal demand for the excess finance charge under La.R.S. 9:3552 A(l)(a).

Assistant Vice President and Loan Services Manager Linda Earle responded by letter on August 31, 1983 that the amount financed was $67,885.00, not $67,750.00. She explained there were 39 days of interest charged to the first payment because of the nine odd days’ interest charge. Ms. Earle attached a calculator machine tape and the loan document to substantiate the finance charge. She invited Dengel to call if the information did not suffice.

On October 21,1983 Dengel wrote another certified letter and attached his first certified letter. He stated that La.R.S. 9:3552 A(l)(a)ii provides that a copy of the notice previously mailed be mailed to the extender of credit’s agent for service of process. Ms. Earle responded in a certified letter dated October 25, 1983 that his figures were miscalculated and she enclosed her August 31, 1983 letter. She again invited Dengel to call.

Dengel filed suit on November 10, 1983 and alleged that Hibernia’s miscalculation and its failure to correct as well as the computation of interest on interest constitutes an intentional violation of La.R.S. 9:3552. Dengel prayed for all loan charges which he calculated to be $31,916.83, plus three times the total finance charge of $62,-297.00 (his calculation of interest at 14.75% without the nine odd days of interest) or $186,891.00 as civil penalties, plus attorney’s fees under La.R.S. 9:3552 A(l)(a). Alternatively, he alleged Hibernia’s computation of interest on interest violated La.C. C. Art. 1939 (pre-1984) [Art. 2001 (1984)] and entitles him to all of the interest in the contract, $62,771.00, under the forfeiture provisions of La.R.S. 9:3501.

The trial judge concluded that Dengel did not carry his burden of proof, particularly as to the amount of interest he actually paid. The court viewed the disclosure statement as having a left side relative to the note which complies with Louisiana law (A-I) and a right side relative to disclosure which complies with federal law (1-6). The bottom of the document, the promissory note, provides that $130,656.00 is payable based on the payment schedule as shown in Item B. Item (or Section) B on the left side relates to Louisiana law and the note only refers to the left side which lists no annual percentage rate. The court noted the difference in the sides of the document:

However, I don’t feel that the situation is such that I can ignore the difference in the two. And under the circumstances I feel like Louisiana Law has been complied with when one lump sum was put into this amount. When I read that in connection with my inability to differentiate between the actual interest charge [949]*949and the amount of the penalties under the Rule of 78, I just have no choice other than to rule for the Defendant.

ERRORS

Dengel assigns five errors: (1) dismissing his lawsuit when the document shows a 14.75% annual rate whereas 14.85% was charged, and no corrective action was taken after the bank was notified; (2) construing ambiguities in Hibernia’s standard form in Hibernia’s favor; (3) not allowing Dengel to call Ms. Earle to testify in order for him to connect the calculator tape to his loan, and not permitting Dengel to testify that Ms. Earle told him the tape was used for Hibernia’s calculations; (4) not allowing into evidence the bank’s commitment letter which specifies a 14.75% APR; (5) not allowing testimony to allegedly show that the bank intentionally had its calculators programmed to charge interest on interest.

SPECIFICATIONS 1 AND 2

La.R.S. 9:3501 et seq., was enacted to protect unwary customers and deter unscrupulous credit practices by providing a remedy for injured consumers. Reliable Credit Corporation v. Smith, 418 So.2d 1311 (La.1982). The Federal Truth In Lending Law is a disclosure law whereas LCCL governs the essentials of the consumer transaction. Id. at 1314, Fn. 2.

Both sides agree that Louisiana has no disclosure requirements. Federal law preempts state law as to maximum interest charges, but it does not involve all state law which regulates credit transactions. United Federal Savings and Loan Association v. Cage, 487 So.2d 171 (La.App. 4th Cir 1986), writ denied 491 So.2d 22 (La.1986).

Joseph Martin, Dengel’s expert on banking transactions and consumer loans, was a bank president and works as a consultant, but he is not an actuary. The trial court allowed Martin to testify on how he calculated the amounts of the loan, but not whether Hibernia’s calculations were correct. He testified the loan document does not violate the federal disclosure requirements, but said 14.75% was not the rate charged.

Martin computed simple interest on the nine odd days to be $250.33 (based on 9 of 360 days even though the tape indicated 365 days was used in the calculator’s computations) and added that sum to the amount financed, $67,885.00.

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Related

Connie Edwards v. Your Credit, Inc.
148 F.3d 427 (Fifth Circuit, 1998)
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Dengel v. Hibernia National Bank of New Orleans
541 So. 2d 899 (Supreme Court of Louisiana, 1989)

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Bluebook (online)
539 So. 2d 947, 1989 La. App. LEXIS 237, 1989 WL 14091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dengel-v-hibernia-national-bank-lactapp-1989.