Super Chief Credit Union v. Gilchrist

653 P.2d 117, 232 Kan. 40, 1982 Kan. LEXIS 346
CourtSupreme Court of Kansas
DecidedOctober 22, 1982
Docket52,968
StatusPublished
Cited by9 cases

This text of 653 P.2d 117 (Super Chief Credit Union v. Gilchrist) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Super Chief Credit Union v. Gilchrist, 653 P.2d 117, 232 Kan. 40, 1982 Kan. LEXIS 346 (kan 1982).

Opinion

The opinion of the court was delivered by

Herd, J.:

This is an action by a lender seeking a deficiency judgment against a borrower and his guarantor following a voluntary surrender and liquidation of the security. The borrower counterclaimed for violations of the Truth in Lending Act (TILA). The trial court rendered judgment for the lender. The pertinent facts are these: On or about April 11, 1977, Robert Gilchrist executed an “open end promise to pay” to the Super Chief Credit Union. The agreement provided for value received and to be received from time to time; Gilchrist agreed to repay to Super Chief all money and property advanced to him. The rate of *41 interest and the minimum periodic payments were to be set out prior to the consummation of each transaction. Pursuant to the agreement Gilchrist pledged all shares which he might have in the credit union as security for all money loaned him by Super Chief.

Approximately two days later, on April 13, 1977, Super Chief advanced to Gilchrist the sum of $1536.68 under the open end promise to pay. Prior to the consummation of this transaction, Super Chief provided Gilchrist with a document entitled “Credit Union Application - Notice of Terms - Disclosure Statement” dated April 13, 1977. This document informed Gilchrist the amount owed, the date, rate of interest and that the security agreement previously given Super Chief would remain in effect on the described property until all obligations to the credit union were paid in full or until cancelled by the credit union.

In conjunction with the advance of April 13 and by an agreement of the same date, Gilchrist gave to Super Chief a security interest in the 1972 Buick he purchased with the funds. This security interest was released June 9, 1978.

On or about May 9, 1978, Super Chief advanced Gilchrist an additional $2380.83 under the open end promise to pay. This amount, which was used to purchase a 1973 Pontiac Grand Prix, was added to an existing account balance of $546.51. Prior to the consummation of this transaction Super Chief gave Gilchrist another “Credit Union Application - Notice of Terms - Disclosure Statement,” dated May 9, 1978, which made the same disclosures as the April 13, 1977, document. In conjunction with this advance Gilchrist signed an agreement giving Super Chief a security interest in the 1973 Pontiac.

As further security for the May 9 advance Super Chief obtained a limited guarantee agreement from Sandra Parks for $2927.34, the entire amount owing from Gilchrist to Super Chief.

Gilchrist had difficulty making the minimum monthly payments on the May 9 advance. On January 17,1979, he voluntarily surrendered the 1973 Pontiac to Super Chief. Super Chief sold the car and applied the proceeds to Gilchrist’s unpaid balance. A deficiency of $1776.30 remained. On July 12, 1979, Super Chief filed an action against Gilchrist and Parks seeking judgment in that amount. Both defendants answered, denying liability and counterclaiming against Super Chief for alleged violations of the *42 TILA, 15 U.S.C. 1601 et seq. The district court ruled in favor of Super Chief, denying the appellants’ claims in toto.

Gilchrist and Parks appealed. In the unpublished opinion the Court of Appeals reversed holding Super Chief had not complied with the disclosure requirements of the TILA. The Court of Appeals also remanded the case, ordering the trial court to enter judgment in favor of the appellants for twice the original finance charge (15 U.S.C. § 1640[a]), and to award appellants costs and reasonable attorney fees.

This court granted Super Chief’s petition for review.

Because the issues in this case involve the interpretation of the Federal Truth in Lending Act (TILA) (15 U.S.C. 1601 et seq.) it would be best to examine the legislative history and purpose behind the Act. Unless otherwise noted all references are to the Act as it stood at the time of the transactions in question. The Truth in Lending Simplification and Reform Act, signed into law by President Carter on March 31, 1980, is not applicable to this case.

Acquiring consumer goods and services on credit has obviously become an integral way of life for many people in the United States. Prior to the enactment of the TILA, however, the consumer was unable to make simple and direct cost comparisons among the many alternative sources of credit. The availability of credit loans, bank financing, small loan companies and revolving credit often trapped the consumer in a veritable jungle of figures. The divergent, and sometimes fraudulent, practices by which credit customers were informed as to the terms of the credit extended to them made it difficult for customers to shop around and compare the various credit terms available. As a result consumers were prevented from obtaining the best possible credit terms. They often assumed liability they could not meet. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 36 L.Ed.2d 318, 93 S.Ct. 1652 (1973).

In an attempt to remedy this situation Senator Paul Douglas introduced the first truth in lending bill January 7, 1960. Although his bill died in committee, Senator Douglas had started the ball rolling. In each subsequent session of Congress efforts were made to enact truth in lending legislation. Finally, in May of 1968, President Johnson signed the TILA into law. The first section of that act states:

*43 “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 consumer. It is the purpose of this subchapter 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. § 1601(a).

Since the adoption of the TILA courts have added their own interpretations of congressional purpose. One court has stated the Act reflects a transition in Congressional policy from the philosophy of let-the-buyer-beware to one of let-the-seller-disclose. Allen v. Beneficial Finance Co., 393 F. Supp. 1382, (N.D. Ind.), aff’d 531 F.2d 797, cert. denied 429 U.S. 885 (1976).

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Bluebook (online)
653 P.2d 117, 232 Kan. 40, 1982 Kan. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/super-chief-credit-union-v-gilchrist-kan-1982.