Norman Sage, Plaintiff-appellant, v. Freedom Mortgage Company, Defendant-appellee, 704 F.2d 1519 (11th Cir. 1983)

A panel of this court reversed a summary judgment for the lender defendant¹  holding itself bound by the fifth circuit's decision in Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976), cert. denied, 434 U.S. 891, 98 S. Ct. 265, 54 L. Ed. 2d 176 (1977).²  Applying Pollock the panel held that the lender violated section 129(a) (1) of the Truth-in-Lending Act, 15 U.S.C. § 1639(a) (1) by not making a disclosure of net loan proceeds separate from other required or permitted disclosures.³  Sitting en banc the court has reconsidered the correctness of the Pollock rule in the light of Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S. Ct. 790, 63 L. Ed. 2d 22 (1980). We now conclude that the Pollock rule is in error, decline to follow it as precedent in this circuit, and affirm the district court.

The Pollock court held that section 1639(a)⁴  required disclosure of three different items, (1) the amount of cash given to debtor or on his behalf (the "net loan proceeds"), (2) individually itemized charges that are part of the credit extended but not part of the finance charge, and (3) the total of the first two items (the "amount financed"). 535 F.2d at 298.

This case involved a real estate transaction. Here the itemized charges referred to in subsection two of section 1639(a), which were expenses usually thought of as "closing costs," were paid out of other funds and were not part of the credit extended. As a consequence the "net loan proceeds" and the "amount financed" fortuitously equal the same number. The disclosure statement correctly reflected the amount financed but did not have a separate listing of the "net loan proceeds." The panel held that the lender's failure to list the net loan proceeds as a separate item was misleading and violated the Act.

The Act contains a broad grant of authority to the Federal Reserve Board to prescribe regulations to carry out the Act's purposes. 15 U.S.C. § 1604. Regulation Z, 12 C.F.R. Sec. 226, which was promulgated pursuant to that grant of authority does not require that the disclosure statement contain net loan proceeds as a separate item. In pertinent part the regulation requires disclosure of

(1) The amount of credit, excluding items set forth in paragraph (e) of this section, which will be paid to the customer or for his account to another person on his behalf, including all charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge, using the term "amount financed."

12 C.F.R. Sec. 226.8(d) (1). In implementing section 1639(a) the board thereby designed a disclosure requirement combining its subsections. The Pollock court held that this portion of the regulation must be read in the light of section 1639(a) to require a labeled disclosure of the net loan proceeds. The board has construed its regulation to the contrary in its staff interpretations⁵  and it so argued before the court as amicus curiae in Pollock. The court rejected the board's position holding that the regulation as construed by the board was beyond the board's power under the statute. 535 F.2d at 298.

A Unit B panel of the fifth circuit recently concluded in Smathers v. Fulton Federal Savings and Loan Association, 653 F.2d 977 (5th Cir. 1981), that another portion of the Pollock opinion could no longer be regarded as binding precedent in the light of the Supreme Court's intervening opinion in Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S. Ct. 790, 63 L. Ed. 2d 22 (1980). A portion of the Milhollin language relied on was as follows:

And deference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive for several reasons.

The Court has often repeated the general proposition that considerable respect is due "the interpretation given [a] statute by the officers or agency charged with its administration." An agency's construction of its own regulations has been regarded as especially due that respect. This traditional acquiescence in administrative expertise is particularly apt under TILA, because the Federal Reserve Board has played a pivotal role in setting [the statutory] machinery in motion...." As we emphasized in Mourning v. Family Publications Service, 411 U.S. 356 [93 S. Ct. 1652, 36 L. Ed. 2d 318] (1973), Congress delegated broad administrative lawmaking power to the Federal Reserve Board when it framed TILA. The Act is best construed by those who gave it substance in promulgating regulations thereunder.

444 U.S. at 566, 100 S. Ct. at 797 (citations omitted) (footnote omitted) (emphasis added) (quoted in Smathers, 653 F.2d at 980).

The Smathers court concluded that although we previously had given deference to Federal Reserve staff opinions, Milhollin required that weight of a much different quality be given. 653 F.2d at 981. Appellee Freedom Mortgage Company argues that the Pollock court and the panel in this case failed to apply the Milhollin standard in reviewing the board's implementation of section 1639(a).

The board perceived there to be a potential for conflict or overlap between the provisions of subsections 1639(a) (1) and 1639(a) (2). An example illustrates the basis of the board's concern. In a typical real estate transaction a variety of closing costs are frequently paid out of the mortgage loan proceeds. These expenses such as title insurance premiums, credit life premiums, surveying expenses, recording fees and the like are often paid to third persons on behalf of the borrower/purchaser. They are not part of the finance charge. The board suggested that expenses of this nature came within section 1639(a) (1) because they were part of "the amount of credit of which the obligor will have the actual use" but which will be paid "to another person on his behalf." Similarly they were includable within section 1639(a) (2) because they were charges which are included in the amount of extended credit but "not part of the finance charge." The Pollock court rejected the board's contention that Regulation Z was a permissible response to this potential conflict. It concluded that it was more reasonable to construe the language of subsection one so that it did not include charges covered by subsection two. 535 F.2d at 298.

The Pollock court's approach might well have been a more reasonable implementation of the statute than the approach the board elected. That, however, is not the question. Under Milhollin the only question before us is whether the board's discharge of its broad authority under 15 U.S.C. § 1604 was demonstrably irrational when it provided that disclosures under subsections of 1639(a) be combined. We conclude that we cannot make a determination of demonstrable irrationality. We therefore hold that the pertinent provision of Regulation Z is valid and must be given effect and that the conflicting net loan proceeds disclosure requirement of Pollock cannot stand. In reaching this result we now agree with the seventh circuit which reexamined the question in the light of Milhollin. Pridegon v. Gates Credit Union, 683 F.2d 182, 194 (7th Cir. 1982). It follows that the judgment of the district court granting summary judgment for the defendant should be affirmed.

AFFIRMED.

CLARK, Circuit Judge, with whom HATCHETT, Circuit Judge, joins, dissenting:

I dissent. In holding that a lender is not required to disclose to a borrower the amount of "net cash in fist"--the sum the borrower walks out of the finance company with--the majority deprives consumers in the three states of this circuit from knowing the most meaningful disclosure mandated by Congress in the Truth-in-Lending Act. The decision is regrettably reached without any logically reasoned basis, unless one concludes that it is reasonable to permit the Federal Reserve Board to ignore a clear mandate of Congress. To analyze the problem, one must look at the statute, the Board regulation, the financial disclosure statement furnished by Freedom Mortgage in this case, and the disclosure statement that should have been furnished.

The Statute

Section 1639. Consumer loans not under open end credit plans--Required disclosures by creditor

(a) Any creditor making a consumer loan or otherwise extending consumer credit in a transaction which is neither a consumer credit sale nor under an open end consumer credit plan shall disclose each of the following items, to the extent applicable:

(1) The amount of credit of which the obligor will have the actual use, or which is or will be paid to him or for his account or to another person on his behalf.

(2) All charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge.

(3) The total amount to be financed (the sum of the amounts referred to in paragraph (1) plus the amounts referred to in paragraph (2)).

* * *

* * *

15 U.S.C. § 1639(a) (emphasis added).

The Federal Reserve Board Regulation

(d) Loans and other nonsale credit. In the case of a loan or extension of credit which is not a credit sale, in addition to the items required to be disclosed under paragraph (b) of this section, the following items, as applicable, shall be disclosed:

(1) The amount of credit, excluding items set forth in paragraph (e) of this section, which will be paid to the customer or for his account to another person on his behalf, including all charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge, using the term "amount financed."

12 C.F.R. sec. 226.8(d) (1) (emphasis added).The Financial Disclosure Statement Mandated by Congress

Credit Available for Actual Use of Borrower

Referring first to the statute, section 1639(a), one notes that paragraph (1) of the statute requires disclosure of the amount of credit of which the obligor will have the actual use: the amount "which is or will be paid to him or for his account or to another person on his behalf." Paragraph (a) (3) of the statute requires that the total of the figures in paragraphs (a) (1) and (2) must add up to the amount financed, which in this case is $38,658.38. The Board regulation has lumped the amount of credit available to the borrower with all charges which are included in the amount of credit but which are not part of the finance charge. The phrase "all charges" means a lender's legitimate charges for costs necessary to make the loan, but excepted from the finance charge by 15 U.S.C. § 1605(b)-(e). (See note 1).

The financial disclosure statement furnished by Freedom conforms with neither the statute nor the regulation because it does not reflect what sum of money the borrower received as the result of the transaction, in this case $37,332.92 (the circled amount in "The Financial Disclosure Statement Mandated by Congress"). The regulation, although having no separate breakdown as required by the statute, can be construed to require that the borrower be informed of the net amount to be paid to him or in his behalf to another and that all the items add up to the amount financed. With the Freedom Mortgage form, the borrower must make calculations in order to determine the exact amount of money by which he is benefited as a result of the loan transaction.

The majority misunderstands the purpose behind the Board's modification of the congressional statute.²  The Board determined that lenders and borrowers would be confused by "all charges" made pursuant to paragraph (a) (2) of the statute and payments under paragraph (a) (1) for the account of the borrower or to another person on his behalf. In the amicus brief filed in this case, counsel points to an example of property or credit insurance which could be said to be paid to another for the benefit of the borrower under paragraph (a) (1) or which could be an item classified as "all charges" under paragraph (a) (2). Thus, the Board, in its regulations, prescribed that the lender could itemize all expenditures made by the lender which when added to the amount of money furnished the borrower (the circled amount) equals the "amount financed." In order to reach a total that equals the "amount financed," all of the sums must be itemized, and amongst the items listed must be included the amount of money furnished the borrower (the circled amount). The majority excuses the lender in this case, and all lenders in the three states covered by this circuit, from being obligated to inform a borrower of the amount of money which he is receiving. In this case, the majority fails to require disclosure of the sum of $37,332.92 (the circled amount).

The seminal case on this subject is Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976), cert. denied, 434 U.S. 891, 98 S. Ct. 265, 54 L. Ed. 2d 176 (1977). In speaking of the relationship between the statute and the regulation, the court said:

These three subsections of sec. 1639(a) clearly require the disclosure of three different items. A creditor must disclose (1) the amount of cash given to the debtor or given on the debtor's behalf, (2) the charges, individually itemized, and (3) the total of the above two amounts. As the disclosure statement makes apparent, General Finance satisfied only the last two subsections of sec. 1639(a). The statement also informed the debtor that the total amount financed was $171.36. However, the statement failed to disclose that the amount of the loan was $155.28. Although the debtor could have determined the amount of the loan by the simple arithmetic procedure of subtracting the total insurance charges from the total amount financed, we determine that the statute does not require a consumer to perform this function, and that the creditor's failure to disclose the required item violated sec. 1639(a) (1).

535 F.2d at 298-99 (footnote omitted). Pollock has been followed in a number of other cases.³ 

The majority opinion holds that it is unnecessary for a lender to disclose the net loan proceeds as required by 15 U.S.C. § 1639(a) (1) and as conceptually required by the Board regulation found in 12 C.F.R. sec. 226.8(d) (1). The majority makes this giant step of obliterating the congressional mandate and the Board duly adopted regulation by saying " [t]he board has construed its regulation to the contrary in its staff interpretation," citing certain staff opinion letters. at pp. 1520-1521 and n. 5). Without being explicit, the majority holds that the Board can rewrite the statute by issuing regulations, and then if the regulations are not clear, (see note 2), the Board can issue interpretative letters that eliminate the clear intent of Congress set out in the statute. As legal support the majority cites Smathers v. Fulton Federal Savings and Loan Association, 653 F.2d 977 (5th Cir. 1981), where the court had under consideration "the question whether the disclosure statement should have used the word 'will' instead of 'may' as to the security interest in after-acquired property ...." 563 F.2d at 979. In holding for the lender in that case, the court stated that use of the word "will" was not essential and that the word "may" was permissible, particularly in light of a Federal Reserve Board letter so interpreting a Board regulation. The majority next states: "The Smathers court concluded that although we previously had given deference to Federal Reserve staff opinions, Milhollin required that weight of a much different quality be given," and concludes:

Under Milhollin the only question before us is whether the board's discharge of its broad authority under 15 U.S.C. § 1604 was demonstrably irrational when it provided that disclosures under subsections of 1639(a) be combined. We conclude that we cannot make a determination of demonstrable irrationality. We therefore hold that the pertinent provision of Regulation Z is valid and must be given effect and that the conflicting net loan proceeds disclosure requirement of Pollock cannot stand.

(at pp. 1521-1522).

The majority reads Ford Motor Co. v. Milhollin, 444 U.S. 555, 100 S. Ct. 790, 63 L. Ed. 2d 22 (1980), too broadly to reach its conclusion that the Federal Reserve Board can modify a statute of Congress and then issue interpretive orders construing its own regulations in a manner that vitiates the congressional act. The language of Milhollin must be considered in the light of the facts of that case and the reasoning of the Court. In Milhollin, the Supreme Court had under consideration a claim by the borrower:

that acceleration clauses were comprehended by the general statutory prescription that a creditor shall disclose "default, delinquency, or similar charges payable in the event of late payments," 15 U.S.C. sections 1638(a) (9), 1639(a) (7), and were included within the provision of Regulation Z requiring disclosure of the "amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments," 12 CFR sec. 226.8(b) (4) (1979).

444 U.S. at 559, 100 S. Ct. at 794, 63 L. Ed. 2d at 27. The Supreme Court reached the reasonable conclusion that " [a]n acceleration clause cannot be equated with a 'default, delinquency, or similar charg [e],' subject to disclosure under 15 U.S.C. sections 1638(a) (9), 1639(a) (7), and 12 CFR sec. 226.8(b) (4)." In Milhollin, the Court reasoned:

[W]e conclude that the issue of acceleration disclosure is not governed by clear expression in the statute or regulation, and that it is appropriate to defer to the Federal Reserve Board and staff in determining what resolution of that issue is implied by the truth-in-lending enactments.

444 U.S. at 560, 100 S. Ct. at 794, 63 L. Ed. 2d at 28. The statute under consideration in this case does give clear expression by requiring disclosure to the borrower of "the amount of credit of which the obligor will have the actual use."

Congress was not silent with respect to the requirement that a lender inform a borrower of the sum of money being loaned. Because Congress mandated the full disclosure of the amount of credit of which the borrower would have the actual use, I dissent.