Waters v. Weyerhaeuser Mortgage Co.

582 F.2d 503, 26 Fed. R. Serv. 2d 694, 1978 U.S. App. LEXIS 8879
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 21, 1978
DocketNo. 76-1813
StatusPublished
Cited by20 cases

This text of 582 F.2d 503 (Waters v. Weyerhaeuser Mortgage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waters v. Weyerhaeuser Mortgage Co., 582 F.2d 503, 26 Fed. R. Serv. 2d 694, 1978 U.S. App. LEXIS 8879 (9th Cir. 1978).

Opinion

EUGENE A. WRIGHT, Circuit Judge:

In this action alleging a violation of the Consumer Credit Protection Act (15 U.S.C. § 1601 et seq), we affirm the grant of summary judgment for the defendants and hold that disclosure of the information required by § 1639(a) of the Act is timely at any time until the parties have entered into a contractual relationship.

The appellants, Mr. and Mrs. Waters, alleged in their class action that the defendants Weyerhaeuser Mortgage Company (WMC) and Weyerhaeuser Mortgage Company of Nevada (WMCN) had failed timely to disclose the required information in the financing of a home. The Waters signed an offer in 1971 to purchase a home in a Las Vegas subdivision owned by Pardee Phillips of Nevada (PPN). Being unable to obtain a Veterans Administration loan, the Waters made a second offer to purchase in May 1972, conditioned on their ability to obtain an FHA loan.

The loan application, at PPN’s suggestion, went through WMCN to FHA. The basic offer stated that “Buyer agreed to make application to a lending institution to be selected by the Seller . . . ” That language was modified later in the purchase offer by the following:

Buyer and Seller acknowledge that notwithstanding any agreement or reference herein, expressed or implied, relating to financing (or to a particular loan or lender), such agreement or reference is intended by Seller as an offer of service only, and Buyer is entitled, without penalty, to secure such financing, if any, from any institution or other source and under such terms and conditions as may be acceptable to Buyer.

The buyers were told in June 1972 that the loan was approved and that FHA was committed. The sale was to be closed in July but the Waters took earlier possession under an Agreement for Use and Occupancy. Thereafter, they made improvements and added draperies and carpeting. The sale was to be closed in escrow at Lawyers’ Title and on July 27 the Waters met with the escrow officer. Presented to them were a deed of trust, deed of trust note and a disclosure statement, the latter dated July 14. Mr. Waters, a lawyer, changed the date and entered the correct one, July 27, above his signature.

1. TIMELINESS OF DISCLOSURE.

The appellant purchasers contend that the failure of WMCN to provide a disclosure statement before closing violated 15 U.S.C. § 1639(b) which states:

Except as otherwise provided in this part, the disclosures required by subdivision (a) of this section shall be made before the credit is extended, and may be made by disclosing the information in the note or other evidence of indebtedness to be signed by the obligor.

[505]*505We have not heretofore considered whether a disclosure statement can be given simultaneously with the “consummation” of the credit transaction or whether it must be given at an earlier time. We alluded in Ljepava v. M. L. S. C. Properties, Inc., 511 F.2d 935 (9th Cir. 1975), to the problem of determining whether the Act’s purposes were reasonably fulfilled by requiring disclosure before consummation to permit the borrower to shop for credit. We noted that, while the argument for prior disclosure was “logically persuasive,” virtually every court that had considered § 1639(b) had rejected it. Id. at 943. The decision in Ljepava was based on other grounds and the question has remained open in this circuit.

Other courts have generally focused on the creation of a contractual relationship as the operative factor in determining the timeliness of disclosure. Except for a district court opinion, overruled on appeal, we have found no case which has held that disclosure at time of closing is untimely. Bissette v. Colonial Mortgage Corp. of D. C., 340 F.Supp. 1191 (D.D.C.1972), rev’d and remanded, 155 U.S.App.D.C. 360, 477 F.2d 1245 (1973).

There can be no violation of the Act until the transaction is consummated. Bissette v. Colonial Mortgage Corp., 477 F.2d at 1246; Stevens v. Rock Springs National Bank, 497 F.2d 307 (10th Cir. 1974); Wachtel v. West, 476 F.2d 1062 (6th Cir.), cert. denied, 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114 (1973); Thompson v. Twin City Finance Corp., 409 F.Supp. 924 (W.D.La. 1976); Postow v. Oriental Building Association, 390 F.Supp. 1130 (D.D.C.1975).

Pursuant to 15 U.S.C. § 1604, the Federal Reserve Board issued Regulation Z, 12 C.F.R. §§ 226.1-226.1002 (1972), which contained the administrative regulations applicable to the Act. Under 12 C.F.R. § 226.-8(a) (1972) “disclosures shall be made before the transaction is consummated.” The consummation of a contract occurs whenever “a contractual relationship is created between a creditor and a customer irrespective of the time of performance of either party.” 12 C.F.R. § 226.2(cc) (1972).

After the district court opinion in Bissette, which held that disclosure on the date of closing did not comply with the act, the Board proposed an amendment to the regulations which would have required that disclosure, in transactions involving the purchase of a home, be made “not less than 10 business days before the date on which the customer executes the note or other evidence of debt.” 37 Fed.Reg. 15522, August 3, 1972. The amendment was not adopted, however, after the Board received adverse comments pointing out problems which consumers might have with a rigid ten-day rule.

The introduction and later rejection of the amendment creates a convincing inference that the Board believed the existing regulations contained no such requirement and. intended no such time scheme to exist.

The Board, after an opportunity to consider the merits and disadvantages of requiring disclosure at a prescribed time before the consummation of the contractual relationship, chose to refrain from establishing such a requirement. We agree and hold that disclosure at time of closing satisfies the requirements of 15 U.S.C. § 1639(b).

2. EXISTENCE OF A CONTRACTUAL RELATIONSHIP.

As an alternative argument, the Waters contend that, in any event, a contractual relationship existed before July 27, 1972, the date of disclosure and closing of escrow.

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Waters v. Weyerhaeuser Mortgage Company
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582 F.2d 503, 26 Fed. R. Serv. 2d 694, 1978 U.S. App. LEXIS 8879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-weyerhaeuser-mortgage-co-ca9-1978.