James v. Home Construction Co. of Mobile, Inc.

621 F.2d 727
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 15, 1980
DocketNo. 78-3099
StatusPublished
Cited by12 cases

This text of 621 F.2d 727 (James v. Home Construction Co. of Mobile, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James v. Home Construction Co. of Mobile, Inc., 621 F.2d 727 (5th Cir. 1980).

Opinion

TUTTLE, Circuit Judge:

This is an appeal from a granting of the defendant’s motion to dismiss in a Truth-in-Lending Act class action. The district court based its dismissal on two grounds — that a class action was inappropriate for 15 U.S.C. § 1635 actions and that a successor obligor could not bring a Truth-in-Lending action. We reverse the judgment of the trial court as to the successorship theory but hold that the plaintiff cannot bring this action as a class action.

Rebecca James, the mother of the plaintiff here, contracted with the defendant in 1973 to have repairs and improvements done on her home. According to the trial court, although Mrs. James was told by an agent of the defendants at that time that the cost would be $5,322.00, she received a statement in August 1973, reflecting that she owed $7,509.60 on the deferred payment price. In accordance with the credit extension, Mrs. James made 36 monthly payments of $125.16 before her death in July, 1976. The plaintiff, her son and administrator of the estate, made several more payments after her death. However in May 1977, Mr. James through his attorney, gave notice to the defendants of recission and cancellation of the contract and demanded payment of all sums due to him under federal and state statutes.

Mr. James then initiated this suit, seeking relief under 15 U.S.C. § 1635(a),1 and sought class certification. The defendant, Home Construction Company, Inc. (Home), first moved to dismiss the suit on the grounds that the three-year statute of limitations barred the suit. The district court denied this motion. Home then moved to dismiss the suit on the grounds that a survivor could not bring a recission action and that a class action was improper for § 1635 suits. The district court granted this motion and dismissed the suit. This appeal ensued.

The defendant argues first again that the three-year statute of limitations bars this suit. Section 1635(f), the section in question, was passed subsequent to when this cause of action arose. The appellee urges that the applicable limitation period began to run when the action arose (June 11, 1973), not when this section was passed (October 22, 1974), and therefore the suit is barred.

Like the district court, we reject the appellee’s contention for several reasons. While we note that several district courts have ruled in similar cases that the limitations period begins to run on the day the contract was signed, we think those cases were wrongly decided. See Jamerson v. Miles, 421 F.Supp. 107 (N.D.Tex.1976); Rodriguez v. County Lumber and Supply Co., 460 F.Supp. 810 (W.D.Ill.1978).

[729]*729We reach this decision for several reasons. In Jamerson v. Miles, the district court reasoned that 15 U.S.C. § 1635(f) was not a true statute of limitations, but rather was a statute which limited a substantive statutorily created right to rescind and therefore could not be applied prospectively. In Jamerson, the court relied heavily on the fact that Section 1635 created and then limited rights which did not exist at common law.

We see no reason to continue to abide by obsolete judicial dicta which have little relevance to contemporary thought.2 The fact that § 1635 is a statutorily created right and not a common law one should make little difference in a consideration of whether or not this cause of action survives. Rather, the key inquiry in a situation like this one centers on what was the Congressional intent in passing § 1635(f). We think it clear that Congress meant to have the statute applied prospectively. First, the Truth-in-Lending Act, a remedial act, has usually been given a broad liberal interpretation since it is assumed that was the intent of Congress. Littlefield v. Walt Flanagan & Co., 498 F.2d 1133 (10th Cir. 1974). Second, the Conference Committee report on the Truth-in-Lending Act amendments of which § 1635(f) were a part, described these amendments as “a series of basically technical amendments designed to improve the administration of the Truth in Lending Act.” H.R.Conf.Rep.No.93-1429, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News 1974, pp. 6119, 6152. This language strongly suggests that Congress did not intend to limit with these amendments those substantive rights that already existed under the Act. For these reasons, we hold that given our interpretation of the Congressional intent in passing § 1635(f), it should be applied prospectively. See also Clemmer v. Liberty Fin. Planning, Inc., 467 F.Supp. 272 (W.D.N.C.1979).

However, we reverse the district court’s judgment dismissing the suit on the grounds that the right to rescind cannot pass to a survivor. In reversing that judgment, we find ourselves in agreement with the reasoning in the recent decision of the Seventh Circuit Court of Appeals in Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (7th Cir. 1980) which found that a cause of action under § 1640 of the Act survives in favor of the administrator of the estate of a deceased plaintiff.

The first question to be decided in a consideration of this issue is whether the survival question is a matter of federal or state law. See Wright, the Law of Federal Courts, 278-286 (1976). As noted in Smith, the question of survival of a federal cause of action has usually been described as a question of federal common law, in the absence of an expression of contrary intent. Smith at 413; Bowles v. Farmers National Bank of Lebanon, Ky., 147 F.2d 425 (6th Cir. 1945); Heikkila v. Barber, 308 F.2d 558 (9th Cir. 1962). Cf. 7A Wright and Miller, Federal Practice and Procedure, § 1952 at 642 (1972). We do not find such an expression of contrary intent here. We therefore hold that this issue is to be decided according to federal common law.

Looking at that common law, we find that very few courts have considered the question of survivability under any sections of the Truth-in-Lending Act. The only Circuit Court to consider any portion of the statute was the Seventh Circuit in Smith.3 We find that a Truth-in-Lending Act action under § 1635 survives the death [730]*730of the plaintiff.4 Traditionally, the rule has been that actions for penalties do not survive the death of the plaintiff. Schreiber v. Sharpless, 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65 (1884). Therefore we must determine whether the remedy that is part of the action under the Truth-in-Lending Act is a penal sanction. In Murphy v. Household Finance Corp., 560 F.2d 206 (6th Cir.

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