Summary
In Collins v. Ray Skillman Olds-GMC Truck, Inc., 2001 WL 1711466 (S.D.Ind. Dec.3, 2001), the court rejected an argument similar to the one advanced here by Plaintiffs.
Summary of this case from Baker v. Sunny Chevrolet, Inc.Opinion
IP 00-1281-C-T/K
December 3, 2001
B Clifford W Shepard Consumer Protection Law Office, IN.
Alan S Brown Locke Reynolds LLP, Indianapolis, IN.
William N Ivers Stewart Irwin, Indianapolis, IN.
John C Trimble Lewis Wagner, Indianapolis, IN.
ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiffs, Jon P. Collins and Anita S. Collins, sued Defendants, Ray Skillman Olds-GMC Truck, Inc., and General Motors Acceptance Corporation ("GMAC") for damages alleging violations of the Truth In Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and Regulation Z, the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq., and Regulation B, as well as the Indiana Credit Services Organization Act ("CSOA"), Indiana Code § 24-5-15-1 et seq. in connection with Retail Installment Contract for the purchase of a motor vehicle. Defendant Ray Skillman filed a motion for summary judgment, and Plaintiffs filed a cross-motion for summary judgment. Plaintiffs have abandoned their claims under the ECOA, so the pending motions address only the claims under TILA and the CSOA. This entry constitutes the court's decision on these motions.
Factual Background
On or about August 16, 1999, Plaintiffs, Jon P. Collins and Anita S. Collins, purchased a motor vehicle from Defendant, Ray Skillman Olds-GMC Truck, Inc. ("Ray Skillman"). On that date, the Collinses executed a Motor Vehicle Retail Installment Contract ("Contract") for the purchase of the vehicle. Under the Contract's terms, they agreed to finance $26,585.70 for the purchase of the vehicle. They were initially offered an annual interest rate of 6.9 percent. Knowing that they could get a lower interest rate elsewhere, they rejected that offer and subsequently were offered and accepted an annual interest rate of 3.9 percent.
The Contract was presented in quadruplicate form to the Collinses for their review, approval and signature. At the time it was presented, the Contract contained the disclosures of which the substance and form are in the manner required by TILA and Regulation Z. One copy of the Contract was designated buyer's copy. The Collinses did not ask for the buyer's copy or any other copy of the Contract to keep prior to signing the Contract. They were not offered to retain a copy before they signed it. The buyer's copy of the Contract was not torn off and handed to them before they signed it.
Robert Griffith, one of Ray Skillman's Business Managers, testified that if a customer were to request a copy of the Motor Vehicle Retail Installment Contract to take away with him or her prior to signing or if a customer simply attempted to leave with a copy of the contract before signing it, he or she could do so. He also testified, however, that in his experience this has never happened.
Ray Skillman applied for financing on behalf of the Collinses with GMAC. Because their credit had not yet been approved, Dale Everett, the Ray Skillman Business Manager who dealt with the Collinses, obtained their permission to keep their copy of the Contract until credit approval. Their credit was approved shortly thereafter, and they received their copy of the Contract in the mail. GMAC paid Ray Skillman for the assignment of the Contract.
The Collinses have admitted that they have not suffered any actual damages as a result of the alleged TILA violation.
On September 21, 2001, the court, pursuant to the stipulation of Plaintiffs and GMAC, entered an Order Of Dismissal With Prejudice, dismissing with prejudice the cause against GMAC. Thus, Ray Skillman is the only Defendant to Plaintiffs' claims at this time.
On November 19, 2001, the court heard oral argument on the summary judgment motions. Plaintiffs indicated that they are no longer pursuing their claim under ECOA, and they have admitted that they are no longer pursuing that claim. (Pls.' Resp. Ray Skillman's Requests for Admissions No. 2.)
Discussion
Both Ray Skillman and the Collinses move for summary judgment on all claims. Summary judgment should be granted only where "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir. 2001). "With cross-motions, [the] review of the record requires that [the court] construe all inferences in favor of the party against whom the motion under consideration is made." O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001).
A. Claim Pursuant to TILA And Regulation Z
The Collinses claim that Ray Skillman violated TILA and implementing Regulation Z. The court finds that summary judgment motion should be granted Ray Skillman because the Collinses have no right to recover under TILA as statutory damages are unavailable for the violation alleged and they have admitted to having no actual damages. Even if the Collinses could prove actual damages, Ray Skillman would be entitled to summary judgment because they cannot prove the alleged violation.
TILA was enacted "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." 15 U.S.C. § 1601(a); Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1070 (7th Cir. 2001). Because TILA is a remedial statute, it should be construed liberally in favor of the consumer. See Ellis v. Gen. Motors Accept. Corp., 160 F.3d 703, 707 (11th Cir. 1998); Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 502 (3rd Cir. 1998). TILA and Regulation Z, promulgated by the Federal Reserve Board to implement TILA, require creditors to make certain disclosures in connection with consumer credit transactions. 15 U.S.C. § 1638; 12 C.F.R. § 226.18. Both Regulation Z and the Federal Reserve Board's official commentary to Regulation Z are accorded deference. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980) (explaining that 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. . . . 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. . . .") (internal quotations omitted); Clay v. Johnson, 264 F.3d 744, 748 (7th Cir. 2001) (stating that the Federal Reserve Board's official staff commentary to Regulation Z is "dispositive" unless "demonstrably irrational") (citing Milhollin, 444 U.S. at 565); Szumny, 246 F.3d at 1069 (stating "Because the Federal Reserve Board is the agency charged with TILA's administration, we accord its regulation deference" and describing the official commentary to Regulation Z as an "authoritative interpretation" of TILA and Regulation Z).
Plaintiffs claim that Ray Skillman failed to comply with the timing and form of disclosure requirements of TILA and Regulation Z. Thus, they allege a violation of 15 U.S.C. § 1638(b)(1) and 12 C.F.R. § 226.17(a) and (b). Ray Skillman contends it did not violate TILA.
1. No Actual Damages and No Entitlement to Statutory Damages
The Collinses have admitted that they suffered no actual damages as a result of the alleged violation, so if they have a claim for damages then it must be based on statutory damages. The Seventh Circuit's decision in Brown v. Payday Check Advances, 202 F.3d 987 (7th Cir.), cert. denied, 531 U.S. 820 (2000), compels the conclusion that no statutory damages are available for the alleged TILA violation in this case. The Brown plaintiffs alleged that the defendants violated § 1632(a), § 1638(a)(8) and § 1638(b)(1) and sought only statutory damages under § 1640(a)(2). Id. at 990-91. The Seventh Circuit said that § 1640(a) statutory damages are available in connection with disclosures under § 1638 "only for failing to comply with the requirements of section 1635 of this title or of paragraph (2) (insofar as it requires a disclosure of the `amount financed'), (3), (4), (5), (6), or (9) of section 1638(a) of this title. . . ." Id. at 991 (emphasis in Brown). The court concluded that the word "only" "confines statutory damages to a closed list." Id. Because the violations alleged by the plaintiffs did not fall within that list, the Seventh Circuit held the plaintiffs were not entitled to statutory damages. Id. at 991-92. The court rejected the plaintiffs' attempts to use the "back door" theory that lack of compliance with §§ 1632(a), 1632(a)(8) and 1638(b)(1) is also a violation of § 1638(a)(3), § 1638(a)(4), and so on, for which statutory damages are available. Id. at 991. The court said: "Congress included some and excluded others; plaintiffs want us to turn this into universal inclusion, which would rewrite rather than interpret § 1640(a)." Id. Thus, Brown holds that statutory damages are available "only for violations of" the subsections specifically enumerated in § 1640(a). Id. at 991-92.
The Collinses contend that the Brown court erred in its statutory construction of TILA's damages provision and that the reasoning in Lozada v. Dale Baker Oldsmobile, Inc., 145 F. Supp.2d 878, 887-89 (W.D.Mich. 2001) (holding that statutory damages are available under § 1640(a)(2) for violations of § 1638(b)(1)), is more complete and sound. Brown is controlling precedent and this court is not in a position to second guess the Seventh Circuit's decision. Arguments that the Brown court erred must be made at the court of appeals rather than before the district court. The Collinses maintain that the alleged violation of TILA is under § 1638(b), which governs the timing and form of disclosures, and is not itself a disclosure. This reasoning was adopted by the Lozada court, see 145 F. Supp.2d at 888, but nevertheless is at odds with Brown. The Collinses also attempt to show an entitlement to statutory damages under a back door theory that the alleged failure to make timely written disclosures was not a disclosure at all, but such an argument was plainly rejected in Brown. Neither Jackson v. Check `N Go of Ill., Inc., 193 F.R.D. 544 (N.D.Ill. 2000), nor Donnelly v. Illini Cash Advance, Inc., No. 00 C094, 2000 WL 1161076 (N.D.Ill. Aug. 16, 2000), lend support to Plaintiffs' claim that defendants have been unsuccessful in extending Brown to cases like this. In those cases the plaintiffs alleged a violation of a subsection specifically enumerated under § 1640(a)(2), namely § 1638(a)(9). Jackson, 193 F.R.D. at 548; Donnelly, 2000 WL 1161076, at *4-5.
At least three other district courts have held that actual damages are the only available remedy for a violation of TILA's timing of disclosure requirement. Tripp v. Charlie Falk Auto, No. CIV. 3:00CV512, 2001 WL 1105132, at *6 (E.D.Va. Aug. 22, 2001) (granting summary judgment on plaintiff's claim that car dealer violated TILA's time of disclosures requirement); Crowe v. Joliet Dodge Union Acceptance Corp., No. 00 C 8131, 2001 WL 811655, at *4 (N.D.Ill. July 18, 2001) (dismissing plaintiff's claim for statutory damages for defendant's alleged failure to give disclosures in a form plaintiff could keep prior to consummation of the transaction in violation of § 1638(b)(1)); Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp.2d 535, 549 (E.D. Va. 2001) ("Notwithstanding the timeliness of Koons' disclosures to Nigh, Koons is also entitled to summary judgment on the timing issue because Nigh cannot demonstrate actual damages. The only remedy for failing to timely make disclosures is actual damages."). These district court decisions are consonant with the Seventh Circuit's holding in Brown. Plaintiffs argue that Nigh's discussion of the availability of statutory damages is dicta as the court found the creditor did not violate TILA's timing of disclosure provisions. But the court's reasoning is an alternative ground for its holding rather than dicta. See Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (stating "where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum"); cf. Wilder v. Apfel, 153 F.3d 799, 803-04 (7th Cir. 1998) (referring to "dicta" as "integral elements of the analysis underlying the decision" and the "essentials" of a decision).
The court concludes that statutory damages are available "only for violations of" the subsections specifically enumerated in § 1640(a). Subsection (b)(1) of § 1638 is not specifically enumerated in § 1640(a). Thus, the court holds that statutory damages are unavailable for violations of TILA's timing and form of disclosure requirements under § 1638(b)(1) and Regulation Z, the violations alleged in this case. Because the Collinses are not entitled to statutory damages under § 1640(a) and they have admitted to having no actual damages, they cannot prevail on their TILA claim and Ray Skillman is entitled to summary judgment on that claim.
2. Refusal to Disclose in Retainable Form Prior to Consummation Not Proved
Even if the Collinses could prove actual damages or were entitled to statutory damages under TILA, summary judgment in favor of Ray Skillman would be appropriate because the Collinses cannot show that Ray Skillman violated TILA and Regulation Z. The parties agree and the court finds that the Collinses became contractually obligated when they signed the Contract. Thus, their signing of the Contract constitutes consummation of the transaction. There is no dispute that the Contract contained all required TILA disclosures before the Collinses signed it. The sole issue is whether Ray Skillman complied with the timing and form of disclosure requirements.
Regulation Z which governs the form and timing of the disclosures provides in pertinent part:
(a) Form of disclosures.
(1) The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. . . .
(b) Time of disclosures. The creditor shall make disclosures before consummation of the transaction.12 C.F.R. § 226.17(a) and (b). Plaintiffs claim that Ray Skillman failed to comply with these requirements because even though it showed them the TILA disclosures, it did not hand them a written copy of the disclosures separate from the copy of the Contract they were to sign prior to their signing the Contract.
In arguing that a creditor is required to give the consumer a physical copy in writing of the TILA disclosures, the Collinses rely heavily on Polk v. Crown Auto, Inc., 221 F.3d 691 (4th Cir. 2000). In Polk, the car dealership explained the credit terms to the buyer but did not disclose the terms in writing in a form he could take with him. After the parties consummated the credit transaction for the sale of a truck, the dealership gave the buyer copies of the retail installment sales contracts which contained the credit terms. Polk, 221 F.3d at 691. The buyer alleged the dealership violated TILA and Regulation Z by not disclosing the credit terms prior to consummation of the transaction. Id. at 692. The district court read subpart (a) independently of subpart (b) of § 226.17 and held that TILA and Regulation Z were satisfied where the dealership made the required disclosures in some form before consummation and later made the disclosures in writing in a form the buyer could keep. Id. The Fourth Circuit found that the district court erred and held that the dealership was required to make the TILA disclosures to the buyer in writing in a form that he could keep before consummation of the credit transaction. Id. The grant of summary judgment to the dealership was reversed and the case remanded for judgment in favor of the buyer. Id.
Some district courts have interpreted Polk as requiring that a creditor give a copy of the TILA disclosures to the consumer in a form he or she can keep prior to consummation of the transaction. See, e.g., Walters v. First State Bank, 134 F. Supp. 2 d 778, 781-82 (W.D.Va. 2001) (relying on Polk and holding bank violated Regulation Z where consumer was not given copy of credit contract which contained TILA disclosures until after she signed it); Holley v. Gurnee Volkswagen Oldsmobile, No. 00 C 5316, 2001 WL 243191, at *3 (N.D.Ill. Jan. 4, 2001) (citing Polk and stating "car dealers must give customers a copy of the RIC they can keep before they sign it"); Lozada v. Dale Baker Oldsmobile, Inc., 197 F.R.D. 321, 337 (W.D.Mich. 2000) (stating that courts "have uniformly held that pre-consummation delivery of a copy of the disclosures is necessary to meet the requirements of the regulations" and citing Polk).
Even if this is a correct interpretation of Polk, where the credit contract contains the required disclosures, nothing in Polk, nor for that matter TILA or Regulation Z, requires a creditor to provide a separate copy of the contract to the consumer before he or she signs it. That is, neither Polk nor TILA or Regulation Z requires a creditor to separate the consumer's copy of the credit contract from the other copies of the contract and give the copy to the consumer before the consumer signs the contract. Such a requirement was rejected very recently in Diaz v. Joe Rizza Ford, Inc., No. 00 C 7082, 2001 WL 1360315 (N.D.Ill. Nov. 2, 2001).
The evidence in Diaz established that the defendant car dealer used a three copy-form of the retail installment contract which contained the TILA disclosures. The terms were negotiated, then the form was filled out, and the customer had the opportunity to review the form and sign it. The top copy was then separated from the other copies and given to the customer. The plaintiff argued that this violated TILA and Regulation Z because she was not given a copy of the disclosures in a form she could keep prior to consummation. Diaz, 2001 WL 1360315, at *1. The court understood Regulation Z to require the car dealer to give the customer the TILA disclosures in a form she could keep before consummation of the transaction and concluded that Regulation Z was not violated. Id. The court said that the overriding purpose of TILA is to promote the informed use of credit and protect consumers from changes in credit terms, and found the plaintiff was informed and protected because she had taken her copy. Id. at *2. The court also found: "nothing to suggest that [the plaintiff] could have not taken away all three copies or the top copy . . . without executing them, if she had so desired. And, she was in physical possession of all three copies when she signed." Id. According to the court, there was no "meaningful distinction between separation of the copies before or after [the plaintiff] signed." Id. Summary judgment was granted the defendant. Id.
Diaz is consistent with an interpretation of Polk as requiring that a creditor give a copy of the TILA disclosures to the consumer in a form he or she can keep prior to consummation of the transaction. The consumer had "her" copy of the TILA disclosures before she signed the contract, and she had an opportunity to review the terms before consummating the transaction. And, as the court in Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp.2d 535 (E.D.Va. 2001), explains, Polk does not state that the retail installment contract cannot be the document that the consumer may keep. Id. at 548-49. Indeed, the Official Staff Commentary to Regulation Z provides that the disclosures may be made on the same document as the credit contract, provided they are segregated from the rest of the document. Official Staff Commentary on Regulation Z, 12 C.F.R. Pt. 226, Supp I, § 226.17 at 390.
Furthermore, the Nigh court is correct: Polk is directed to the timing of the disclosures rather than the form of the disclosures. Nigh, 143 F. Supp.2d at 548 ("The Polk court's principal holding was that a (sic) auto dealership (or other creditor) cannot give a buyer/debtor a copy of his credit terms after the consummation of a transaction; the dealer must provide a detailed disclosure of the credit terms in writing before consummation of the transaction."). Nothing in Polk addresses the meaning of the language "in a form that the consumer may keep" in Regulation Z. Nigh, however, does address this issue.
In Nigh, the plaintiff-consumer claimed the defendant violated TILA and Regulation Z by failing to make the disclosures before consummation of the transaction. The plaintiff had visited the car dealership on three separate occasions in connection with the purchase of a truck. On the first visit, a representative of the dealer discussed the credit terms with him, then filled in the credit terms on a Retail Installment Sales Contract ("RISC") and had the consumer sign the RISC. The consumer returned on two occasions when the down payment was increased and an erroneous charge was removed from the RISC. The consumer signed the RISC on both occasions. Nigh, 143 F. Supp.2d at 539. The plaintiff claimed the defendant violated TILA and Regulation Z because it did not provide him with a copy of the credit terms before he signed the RISCs. Id. He also argued that contemporaneous disclosure did not serve TILA's purpose as he could not "shop" around for a better interest rate. Id. at 548.
The court held that giving the consumer the disclosures on the RISC before the consumer signs it complies with Regulation Z's timing requirement. Id. at 548-49. The court explained that the RISC contained the required disclosures, the plaintiff had the opportunity to read the RISC before signing it, and consummation did not occur until he signed the RISC. Id. The court said that the plaintiff could have chosen not to sign the RISC and could have taken it with him to shop for a better interest rate. Id. The court also held that providing the disclosures on the RISC complies with Regulation Z's form of disclosure requirement. Id. The court rejected the claim that simply showing a consumer the disclosures on the credit contract prior to signature violates TILA and Regulation Z's timing requirements. Nigh, 143 F. Supp.2d at 549 n. 3. It also rejected the argument that a creditor must provide the consumer a separate copy of the TILA disclosures before consummation of the transaction. Id.
Thus, Nigh holds that a creditor complies with the timing and form requirements of TILA and Regulation Z by providing the consumer with the required disclosures on the contract that he or she is to sign before the consumer signs the contract. Nigh has been followed and cited with approval in subsequent decisions. The court in Tripp v. Charlie Falk Auto, No. CIV. 3:00CV512, 2001 WL 1105132, at *6 (E.D.Va. Aug. 22, 2001), relied on Nigh and held that providing consumers the TILA disclosures on the credit contract and giving them the opportunity to review them before signing satisfies TILA and Regulation Z. The court in Crowe v. Joliet Dodge Union Acceptance Corp., No. 00 C 8131, 2001 WL 811655, at *3 (N.D.Ill. July 18, 2001), also found Nigh's reasoning persuasive. The court, however, denied the defendant's motion to dismiss, citing the different standards of review between the motion to dismiss in that case and the summary judgment motion in Nigh.
Plaintiffs cite Compton v. Altavista Motors, Inc., 121 F. Supp.2d 932 (W.D.Va. 2000), for the proposition that disclosure contemporaneous with consummation of the transaction is insufficient under TILA and Regulation Z. Compton does not so hold. The evidence established that the buyer signed the credit contract, consummating the transaction, before she signed the form which the car dealer contended contained the required disclosure. Id. at 936. In addition, the form contained an inaccurate disclosure in violation of TILA. Id. Moreover, the Federal Reserve Board's official commentary to Regulation Z states that the disclosures need not be made by any particular time before consummation. Official Staff Commentary on Regulation Z, 12 C.F.R. § 226, Supp I, § 226.17 at 392. Thus, a disclosure made only a minute before consummation complies with the timing requirements.
This court agrees that Regulation Z requires a creditor to give the consumer the TILA disclosures in a form he or she can keep before consummation of the transaction. However, like the plaintiffs in Diaz and Nigh, the Collinses have not shown that Ray Skillman failed to comply with this requirement. Ray Skillman provided the Collinses the Contract containing the TILA disclosures for their review before signing. The Contract, indisputably, was in writing, and was in quadruplicate form, with one copy designated as the buyer's copy. Thus, the TILA disclosures were in writing and, unlike Plaintiff's counsel's example at oral argument of a poster on the wall, were in a form capable of being kept or taken away. Furthermore, the Collinses have not come forward with any evidence tending to show that the TILA disclosures were not made in a form that they could keep. To state it differently, there is no evidence that they could not have kept or taken away with them a copy of the Contract containing the TILA disclosures before they signed it. In fact, the undisputed evidence is that if they had asked for a copy to take with them or simply attempted to leave with a copy before signing, they could have done so. Because the court agrees that there is no "meaningful distinction" between separation of a consumer's copy from the other copies of a credit contract containing the TILA disclosures before or after signature, Plaintiffs' contention that Ray Skillman was required to provide them with a written copy of the disclosures separate from the copy of the Contract they were to sign prior to their signing is rejected. Moreover, TILA's purpose was fulfilled in this case as the Collinses were informed about available credit elsewhere and able to negotiate an interest rate lower than that initially offered them.
It is noted that the evidence establishes that the Collinses did not keep a copy of the Contract, but rather gave Ray Skillman their permission to keep their copy pending credit approval and received their copy in the mail a few days later. None of these facts, however, create a genuine issue as to whether the TILA disclosures were in a form that the Collinses could have kept had they chosen to do so.
The court finds that the Collinses cannot establish that Ray Skillman violated the timing and form of disclosure requirements of TILA and Regulation Z. This is another reason why Ray Skillman should be granted summary judgment on the TILA claim.
B. Claim Under CSOA
Because the Collinses are no longer pursuing their claim under the ECOA and Ray Skillman is entitled to summary judgment on their claim under TILA, the court in its discretion declines to exercise supplemental jurisdiction over the claim under the CSOA against Ray Skillman. 28 U.S.C. § 1367(c)(3). The CSOA claim is DISMISSED WITHOUT PREJUDICE to refiling in the appropriate state forum within thirty (30) days of this date.
Conclusion
For the foregoing reasons, Ray Skillman's motion for summary judgment should be GRANTED as to the claim under TILA, Plaintiffs' motion for summary judgment should be DENIED, and the court declines to exercise supplemental jurisdiction over the claim under the CSOA which should be DISMISSED WITHOUT PREJUDICE to refiling in the appropriate state forum within thirty (30) days of this date. Plaintiffs' Motion For Class Certification is DENIED. Since the Collinses cannot prove that Ray Skillman failed to make the TILA disclosures in a form that they could keep before consummation of the transaction, they cannot establish that they are proper representatives of the class for which certification is sought.
Final judgment shall be entered accordingly.
ALL OF WHICH IS ORDERED this 3rd day of December 2001.