Harris v. Ford Motor Credit Co. (In re Smith)

10 B.R. 886, 1981 U.S. Dist. LEXIS 11795
CourtDistrict Court, M.D. Georgia
DecidedApril 28, 1981
DocketCiv. A. No. 80-100-ATH
StatusPublished
Cited by1 cases

This text of 10 B.R. 886 (Harris v. Ford Motor Credit Co. (In re Smith)) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Ford Motor Credit Co. (In re Smith), 10 B.R. 886, 1981 U.S. Dist. LEXIS 11795 (M.D. Ga. 1981).

Opinion

OWENS, District Judge:

Ford Motor Credit Company (FMCC) appeals to this court from a finding of the Bankruptcy Court, 7 B.R. 575 (Bkrtcy.), that FMCC was liable to Ernest V. Harris (Trustee) in the amount of $1,000.00 plus costs and reasonable attorney’s fees for violation of the Truth in Lending Act, 15 U.S. C.A. § 1601 et seq. As appellee accepts without exception the appellant’s Statement of the Case was a proper statement of facts, the same are adopted by this court (See Brief of Defendant Appellant Ford Motor Credit Company, pp. 1-3).

Appellant lists two issues to be determined by the court: (a) whether the Retail Buyers Order and Invoice shows the cash price of the automobile to be $5,425.63 as found by the Bankruptcy Court or $5,665.16 as alleged by appellant, the latter amount including “Title Notary and Doc Fees” of $22.50 and “Sales Tax” of $217.03, and (b) whether disclosure of the “Title Notary and Doc Fees” and “Sales Tax” on the Retail Buyers Order and Invoice as a portion of the total cash price by the seller, Jefferson Motor Company, Inc., was sufficient disclosure under Regulation Z, 12 C.F.R. 226.6(d) to relieve appellant from liability for a truth-in-lending violation. The first issue amounts at most to an insignificant error on the part of the Bankruptcy Judge and does not warrant consideration here. The second issue, the purpose and effect of 12 C.F.R. § 226.6(d) in the instant case, is the question to be decided on appeal.

Appellant contends that it should not be held liable for a truth-in-lending violation for failure to show on the contract that the total cash price of $5,665.16 included “Title Notary and Doc Fees” in the amount of $22.50 and “Sales Tax” of $217.03. It cites Regulation Z, 12 C.F.R. § 226.6(d) which provides in part that: “If there is more than one creditor ... in a transaction, each creditor ... shall be clearly identified and shall be responsible for making only those disclosures ... which are within his knowledge and the purview of his relationship with the customer....” Appellant claims that the amounts charged for “Title Notary and Doc Fees” and “Sales Tax” were not within its knowledge and the purview of its relationship with the buyer Smith. Appel-lee, of course, contends that the Bankruptcy Court was correct in its finding that the seller Jefferson Motors was an agent or “conduit” for Ford Motor Credit Company and that FMCC is jointly and severally liable for the violation. Appellee claims that there exists no logical or rational basis by which appellant can escape liability, and that reliance on 12 C.F.R. § 226.6(d) is totally without merit.

The present case is factually very similar to Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (5th Cir. 1976). In Meyers, a “Retail Buyers Order” was filled out by the salesman and signed by the buyer. It showed $3,295.00 as the price of the car. To this price was added a $25.00 service fee, $199.20 in sales taxes, and $15.00 for “Tag, Title and Fees” resulting in a “Total Cash Delivered Price” of $3,534.20. In the disclosure statement the credit company simply entered this “Cash Delivered Price” as the “Cash Price” of the automobile. The buyer insisted that this practice was in violation of Regulation Z, §§ 226.4(b) and 226.8(c)(4) and the Court of Appeals agreed with this contention. The Court considered the specific disclosure requirements of sections 226.8(c) and 226.4(b) and determined that these sections limited what could be included in the term “Cash Price” to the price of the property, the cost of accessories, delivery, and installation charges and the sales [888]*888tax thereon. It found that section 226.-4(b)(4) clearly required the itemization and separate disclosure of the charge for “Tag, Title and Fees” and that failure to individually itemize these charges constituted a violation of the Truth In Lending Act.

The similarity between Meyers and the case before the court seems to require that the decision of the Bankruptcy Judge be affirmed. However, as appellant points out, there is one important dissimilarity between the cases — Regulation Z, 12 C.F.R. § 226.6(d) under which appellant seeks to shield itself from liability was not argued or considered by the Court in Meyers. Section 226.6(d) states as follows:

“Multiple creditors or lessors; joint disclosure. If there is more than one creditor ... in a transaction, each creditor . . . shall be clearly identified and shall be responsible for making only those disclosures required by this part which are within his knowledge and the purview of his relationship with the customer ... If two or more creditors ... make a joint disclosure, each creditor ... shall be clearly identified. The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8, or paragraphs (b) of § 226.15.”

Appellant contends that this regulation is an attempt to divide the responsibility to make disclosures among the creditors. It points out that during the proceedings an employee of appellant testified that appellant had no information about the “Title Notary and Doc Fees.” According to the employee it was only after this litigation began that appellant learned of this information when its attorney requested them to obtain a copy of the “Retail Buyers Order and Invoice” and “Car Invoice,” since neither of these documents are sent to appellant by the seller in the course of their doing business. (Tape Transcript of Proceedings, October 23, 1980, in record).

Section 226.6(d) has been treated in at least three different ways. See, Childs v. Ford Motor Credit Co., 470 F.Supp. 708 (N.D.Ala.1979). One line of cases, which includes Meyers, supra, has imposed liability on multiple creditors without a consideration of this regulation. A second line of cases (the minority view) holds that if the transaction is one in which the seller arranges credit, then the obligation of disclosure is placed upon him by the third sentence of § 226.6(d). Manning v. Princeton Consumer Discount Company, 533 .2d 102 (3d Cir. 1976), affirming 397 F.Supp. 504 (E.D.Pa.1975), on reconsideration of 390 F.Supp. 320 (E.D.Pa.1975), cert. denied 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144, rehearing denied 429 U.S. 933, 97 S.Ct. 342, 50 L.Ed.2d 303. A third view (the majority view) emphasizes the first sentence of § 226.6(d) and finds the limitation of responsibility to disclosure of matters within the creditor’s “knowledge and the purview of his relationship with the customer” confines multiple creditors’ potential liability to nondisclosures for which they are justifiably held responsible. Price v. Franklin Investment Co., 187 U.S.App.D.C. 383, 574 F.2d 594

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Bluebook (online)
10 B.R. 886, 1981 U.S. Dist. LEXIS 11795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-ford-motor-credit-co-in-re-smith-gamd-1981.