Ozie Bowen, on Behalf of Himself and All Others Similarly Situated v. First Family Financial Services, Inc.

233 F.3d 1331, 2000 U.S. App. LEXIS 29621, 2000 WL 1736899
CourtCourt of Appeals for the First Circuit
DecidedNovember 22, 2000
Docket98-6492
StatusPublished
Cited by86 cases

This text of 233 F.3d 1331 (Ozie Bowen, on Behalf of Himself and All Others Similarly Situated v. First Family Financial Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ozie Bowen, on Behalf of Himself and All Others Similarly Situated v. First Family Financial Services, Inc., 233 F.3d 1331, 2000 U.S. App. LEXIS 29621, 2000 WL 1736899 (1st Cir. 2000).

Opinions

CARNES, Circuit Judge:

The plaintiffs, Ozie Bowen and Ethel Ford, filed a putative class action lawsuit against First Family Financial Services, Inc. (“First Family”), claiming that the lender’s practice of requiring customers to sign arbitration agreements before obtaining a consumer loan violates the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq. According to the plaintiffs, that statute prohibits a creditor from conditioning the extension of credit on a customer’s agreement to forego his right to judicial remedies under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., and an arbitration clause contravenes that prohibition. The magistrate judge, acting by consent as the district court,1 concluded that the plaintiffs had not alleged a violation of the ECOA, and that the arbitration agreement signed by plaintiffs was fully enforceable pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. The plaintiffs appealed.

[1334]*1334The plaintiffs have standing to challenge the legality of First Family’s requirement that customers sign arbitration agreements as a condition of credit, because they were required to and did sign such an agreement in order to obtain credit from First Family. On the merits of that issue we agree with the district court that such a requirement does not violate the ECOA. As to the separate questions of whether arbitration agreements are generally unenforceable under the TILA, and whether this one is unenforceable for some other reason, we conclude that the plaintiffs lack standing to raise those issues, because there has been no attempt to enforce the agreement against them, and they have not established that there is a substantial likelihood that it will be enforced against them in the future.

I. BACKGROUND

In 1996, Bowen and Ford, the plaintiffs, separately obtained small loans from First Family, and as part of their transactions, each of them was required to sign a two-page document entitled in bold lettering: “ARBITRATION AGREEMENT.” The agreement provides that First Family and the consumer “agree to arbitrate, under the following terms, all claims and disputes between you and us, except as provided otherwise in this agreement.” In a more specific provision, the agreement states that it applies to “all claims and disputes arising out of, in connection with, or relating to: ... any claim or dispute based on a federal or state statute.”

In August of 1997, Bowen and Ford filed this putative class action. They contend that the TILA grants consumers a non-waivable right to obtain judicial, as distinguished from arbitral, redress of statutory violations, including the right to do so through a class action. That is the basis of their claim that First Family’s requirement that they sign the arbitration agreement violated the ECOA, specifically 15 U.S.C. § 1691(a)(3), because it forced them to waive their right to litigate TILA claims in order to obtain credit. The complaint sought actual and statutory damages as well as declaratory and injunctive relief. Notably, other than their challenge to the arbitration agreement requirement, the plaintiffs did not claim that First Family had violated a substantive provision of the ECOA, the TILA, or any other provision of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1693r.

The district court granted First Family’s motion for judgment on the pleadings. In its order, the court first concluded that the plaintiffs had failed to plead how they exercised a right under the Consumer Credit Protection Act or how First Family had discriminated against them in response to their exercising such a right. Also, the district court was “not persuaded” that the “right” on which the plaintiffs based their ECOA claim — the right to judicial redress, and particularly, the right to pursue a class action for violations of the TILA — was a “right” under the Consumer Credit Protection Act within the meaning of § 1691(a)(3). The court then concluded there was no conflict between the TILA and the FAA that would render the arbitration agreement unenforceable. Consequently, the court granted First Family’s motion for judgment on the pleadings and dismissed the case with prejudice.

II. DISCUSSION

Judgment on the pleadings involves issues of law, and our review is de novo. See Mergens v. Dreyfoos, 166 F.3d 1114, 1116-17 (11th Cir.1999).

A. The ECOA Claim

Enacted as part of the Consumer Credit Protection Act, see 15 U.S.C. §§ 1601-1693r, the ECOA proscribes discrimination in the extension of credit by making it:

unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction—
(1) on the basis of race, color, religion, national origin, sex or marital status, or
[1335]*1335age (provided the applicant has the capacity to contract); ,
(2) because all or part of the applicant's income derives from any public assistance program; or
(3) because the applicant has in good faith exercised any right under [the Consumer Credit Protection Act ].

15 U.S.C. § 1691(a) (emphasis added). If a creditor violates § 1691(a), the ECOA provides that the aggrieved applicant, either through an individual suit or a class action, shall recover any actual damages sustained by the applicant, punitive damages, reasonable attorney’s fees and costs, and any necessary equitable relief. See id. § 1691e.

The TILA is part of the Consumer Credit Protection Act, and it imposes disclosure obligations upon creditors and authorizes consumers to recover both actual and statutory damages when a creditor makes inaccurate or inadequate disclosures. See 15 U.S.C. §§ 1601 et seq. The “right under [the Consumer Credit Protection Act]” upon which the plaintiffs base their § 1691(a)(3) ECOA claim is the purported right under the TILA to litigate, both individually and as a class action, statutory claims for disclosure violations. They contend that First Family discriminated against them “with respect to any aspect of a credit transaction” by requiring them, as a condition of obtaining credit, to agree in advance to arbitrate any claims under the Consumer Credit Protection Act, including any claims under the TILA.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
233 F.3d 1331, 2000 U.S. App. LEXIS 29621, 2000 WL 1736899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ozie-bowen-on-behalf-of-himself-and-all-others-similarly-situated-v-first-ca1-2000.