The opinion of the court was delivered by: POLLAK
LOUIS H. POLLAK, District Judge.
This motion for judgment on the pleadings comes in an action arising out of a loan made by defendant, Household Finance Consumer Discount Company, to plaintiff, Juanita Misher. Plaintiff alleges that defendant violated the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R. § 226 (1981).
The motion raises two issues involving disputed questions of fact not properly the subject of judgment on the pleadings.
Plaintiff first complains that the use of the term "total of payments" violates TILA because it does not indicate that the total amount is payable in 36 months. Regulation Z clarifies the disclosure required with regard to payments:
(3) The number, amount, and due dates or periods of payments scheduled to repay the indebtedness and, except in the case of a loan secured by a first lien or equivalent security interest on a dwelling made to finance the purchase of that dwelling and except in the case of a sale of a dwelling, the sum of such payments using the term, "total of payments."
Regulation Z, 12 C.F.R. § 226.8(b)(3).
This provision has been strictly construed by courts encountering it. In Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (1980), the Seventh Circuit mandated "strict adherence to the required terminology under the statute and regulations," refusing to "countenance deviations from those requirements, however minor they may be in some abstract sense." Id. at 417. The court found a violation of Regulation Z in "the use of the term 'AMOUNT OF NOTE INCL. CHGS. (TOTAL PAYMENT)" instead of the required term 'total of payments.'" Id. The court concluded that "the method of disclosure used (here) was improper, and that the figures should simply have been disclosed as . . . 'total of payments' . . ." Id.3 The description suggested by plaintiff -- incorporating into the disclosure of the "total of payments" an indication that the total amount is payable in 36 monthly payments -- would fail to meet the Smith requirements of standardized terminology and would violate Regulation Z. The information sought by plaintiff -- that the total amount is payable in 36 monthly payments -- now appears directly below the "total of payments." Defendant has disclosed in the simple terminology prescribed by section 226.8(b)(3) the sum, number and amount of the payments as well as the due dates or periods of the payments. Plaintiff proposes no design in compliance with section 226.8(b)(3) that is any clearer.
Plaintiff's next specific complaint is that the definition of "finance charge," set forth in the section called "payment," is improperly located outside the bar grid section and so violates § 226.8(d)(3). Section 226.8(d)(3), however, prescribes not the location but the substance of the "finance charge" description. It requires disclosure of "the total amount of the finance charge, using the term 'finance charge,' and where the total charge consists of two or more types of charges, a description of the amount of each type." Regulation Z, 12 C.F.R. § 226.8(d)(3) (footnote deleted).
The language of Regulation Z thus does not support plaintiff's claim that disclosure of the finance charge must appear in any particular place on the form.
The form in Besaw was, in this respect, more confusing than the one used by Household. Were the average consumer to examine the form used in Besaw, there would be nothing to draw attention to the bottom row, to suggest that the "maintenance charge" is part of the finance charge. Household's form, on the other hand, places both components of the finance charge next to one another on the second row. Although Household's "finance charge" appears in the bottom row, its relationship to the two components is clear.
When the average customer reads, "the Finance Charge is the total of Interest plus Service Charge," those components and their relationship are readily discernible.
Plaintiff's final complaint is that defendant violated Regulation Z by failing to make its disclosures on the bar grid in meaningful ...