Oldham v. Oldham, 337 F. Supp. 1039 (N.D. Iowa 1972)

Michael W. Fay, Cedar Rapids, Iowa, for plaintiff.

Byron G. Riley, Jr., Gerald L. Fatka, D. M. Elderkin, Cedar Rapids, Iowa, for defendants.

McMANUS, Chief Judge.

This matter is before the court on defendants' unresisted motion to dismiss filed December 6, 1971.

In this private civil action plaintiff, a citizen of Iowa, seeks damages from defendants, citizens of Iowa, for garnishment of his wages allegedly in violation of Subchapter II of the Consumer Credit Protection Act (Act), 15 U.S.C. § 1671 et seq. Plaintiff claims loss of his rightful earnings, damage to his reputation in the community and exemplary damages totalling in excess of $10,000. Plaintiff's Complaint is sufficient to invoke the general federal question jurisdiction of the court. 28 U.S.C. § 1331.

Defendants' motion seeks dismissal for failure to state a claim upon which relief can be granted on the grounds that the statute places no duty on people in the class of defendants, that plaintiff failed to allege exhaustion of his administrative remedies and that plaintiff failed to plead that the garnishments did not constitute any of the statutory exceptions. In their brief supporting the motion defendants further claim that Subchapter II of the Act makes no provision for a private civil action to enforce the provisions of that portion of the Act. It is this last ground that the court finds persuasive.

Although no cases have been decided directly on point, the court is of the view that when the Act is considered as a whole (15 U.S.C. §§ 1601-1681) and in light of Jordan v. Montgomery Ward & Co., 442 F.2d 78 (8th Cir. 1971), there is no provision for a private civil action to enforce Subchapter II.

The Act is divided into three subchapters: I Consumer Credit Cost Disclosure; II Restrictions on Garnishment; III Credit Reporting Agencies. All three subchapters provide for primary enforcement by administrative agencies, §§ 1607, 1676 and 1681s. Subchapter II, Section 1676 provides that:

The Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter.

Subchapters I and III provide for a private civil action for noncompliance, § 1640 and §§ 1681n, 1681o and 1681p. There is no such provision in Subchapter II. Further, even the actions for civil liability which are provided for are *1040 limited in scope and application to the respective part of the Subchapter within which they appear. Jordan, supra. Thus, it is the view of the court that if a private civil cause of action were intended for Subchapter II, Congress would have made a specific provision therefor.

As the court said in Jordan, supra:

We cannot extend ... the ambit of the remedy so created.... It is well established that courts may not enlarge by construction the language of a clear and unambiguous statute.... To hold as appellants urge, would expand the ... remedial purview of the civil penalties section past the boundaries of Congressional intent, thereby violating the rule proscribing judicial legislation. [citing cases] p. 82.

Plaintiff has failed to state a claim upon which relief can be granted.