Ed Marling Stores, Inc. v. Miracle

627 P.2d 352, 6 Kan. App. 2d 175, 1981 Kan. App. LEXIS 284
CourtCourt of Appeals of Kansas
DecidedMay 1, 1981
Docket51,660, 52,320
StatusPublished
Cited by4 cases

This text of 627 P.2d 352 (Ed Marling Stores, Inc. v. Miracle) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ed Marling Stores, Inc. v. Miracle, 627 P.2d 352, 6 Kan. App. 2d 175, 1981 Kan. App. LEXIS 284 (kanctapp 1981).

Opinions

Swinehart, J.:

These two appeals arise from petitions filed by Ed Marling Stores, Inc., alleging breach of conditional sales contracts. Case No. 51,660 was filed in Douglas County District Court, and No. 52,320 was filed in Shawnee County District Court. In each case plaintiff Ed Marling Stores, Inc., recovered the balances due on the conditional sales contracts. However, the [176]*176final decisions on the defendants’ counterclaims for costs and attorney fees, based upon the allegations of plaintiff’s violation of the disclosure provisions of the Federal Truth in Lending Act and the Kansas Uniform Consumer Credit Code, resulted in a judgment in favor of plaintiff Ed Marling Stores, Inc., in case No. 51,660, and in favor of defendant Richardson, in case No. 52,320.

The ultimate question to be decided on this consolidated appeal is whether the plaintiff violated K.S.A. 16a-3-206, which incorporates the Federal Truth in Lending Act, and if so, whether it nevertheless is excused from liability under K.S.A. 16a-5-203.

In case No. 51,660, defendant Cheryl Miracle signed the name of her husband to a conditional sales contract and security agreement for the purchase of a Sony AM-FM cassette stereo from plaintiff Ed Marling Stores, Inc. She defaulted on the payments and plaintiff filed suit in Douglas County either for repossession of the merchandise, or if repossession could not be effectuated, for the balance due under the contract. Defendants counterclaimed, alleging that the conditional sales contract violated certain disclosure requirements of the Federal Truth in Lending Act and the Kansas Uniform Consumer Credit Code because it failed to disclose the amount of the “unpaid balance.”

The trial court rendered judgment for the plaintiff on its petition and on the defendants’ counterclaim. Specifically, the trial court found:

“From the evidence submitted at trial and the briefs filed in this case . . . the plaintiff substantially complied with all applicable requirements and the contract when read as a whole is clear and unambiguous and does not require the repeat use of the term ‘Unpaid Balance.”’

In case No. 52,320 plaintiff brought suit against the defendant Kathryn Richardson for a transaction similar to the one described in No. 51,660. The same type of counterclaim was filed by the defendant. The Shawnee County District Court entered judgment in favor of defendant upon the defendant’s counterclaim and awarded defendant twice the finance charge of the transaction in question, and costs, including attorney fees pursuant to 15 U.S.C.S. § 1640(a) (Supp. 1980) and K.S.A. 16a-5-203. Judgment was rendered in favor of plaintiff for the amount due under the conditional sales contract.

These appeals question whether the failure of Ed Marling Stores, Inc., to include the term “unpaid balance” on its condi[177]*177tional sales contracts violated the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. (1976), which is incorporated in the Kansas Uniform Consumer Credit Act. See K.S.A. 16a-1-302 and 16a-3-206. There is no Kansas case law on this issue.

The purpose of the Federal Truth in Lending Act is set forth in 15 U.S.C. § 1601(a) (1976):

“The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this title [15 USC §§ 1601 et seq.] 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, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.”

15 U.S.C. § 1631 (1976) sets forth the general disclosure requirements in transactions governed by the Federal Truth in Lending Act. As all parties concede that the contracts are for consumer credit sales, not under an open-end credit plan, 15 U.S.C. § 1638 (1976) prescribes the applicable items which must be disclosed by a creditor.

“(1) The cash price of the property or service purchased.
“(2) The sum of any amounts credited as downpayment (including any trade-in).
“(3) The difference between the amount referred to in paragraph (1) and the amount referred to in paragraph (2).
“(4) All other charges, individually itemized, which are included in the amount of the credit extended but which are not part of the finance charge.
“(5) The total amount to be financed (the sum of the amount described in paragraph (3) plus the amount described in paragraph (4)).
“(6) Except in the case of a sale of a dwelling, the amount of the finance charge, which may in whole or in part be designated as a time-price differential or any similar term to the extent applicable.”

Disclosures (7) through (10) are irrelevant to these cases.

15 U.S.C. § 1631 (1976) authorizes the Board of Governors of the Federal Reserve System to implement the disclosure requirements and the Board so responded with “Regulation Z.” See 12 C.F.R. Part 226 (1980). (See also 15 U.S.C. § 1604 and § 1632 [1976]).

Implicated in this action are the disclosure requirements promulgated by the Board and contained in 12 C.F.R. § 226.8(c) [178]*178(1980). The following information must be, disclosed by the creditors in the consumer credit sales:

“(1) The cash price of the property or service purchased, using the term ‘cash price.’
“(2) The amount of the downpayment itemized, as applicable, as downpayment in money, using the term ‘cash downpayment,’ downpayment in property, using the term ‘trade-in’ and the sum, using the term ‘total downpayment.’
“(3) The difference between the amounts described in paragraphs (c)(1) and (2) of this section, using the term ‘unpaid balance of cash price.’

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Super Chief Credit Union v. Gilchrist
653 P.2d 117 (Supreme Court of Kansas, 1982)
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Ed Marling Stores, Inc. v. Miracle
627 P.2d 352 (Court of Appeals of Kansas, 1981)

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Bluebook (online)
627 P.2d 352, 6 Kan. App. 2d 175, 1981 Kan. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ed-marling-stores-inc-v-miracle-kanctapp-1981.