490 F2d 865 Killings v. Jeff's Motors Inc

490 F.2d 865

Ruby Mae KILLINGS, Plaintiff-Appellant,
JEFF'S MOTORS, INC., Defendant-Appellee.

No. 73-2698.

United States Court of Appeals, Fifth Circuit.

March 11, 1974.

Samuel G. McKerall, Birmingham, Ala., for plaintiff-appellant.

Walker Norris, Birmingham, Ala., for defendant-appellee.

Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

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The appellant Ruby Mae Killings bought a used car from the appellee. She paid $300 down and signed an installment sales contract under which she agreed to pay $75.72 per month until the balance was repaid. The contract form contained a section for the vendor's disclosures required by the Consumer Credit Protection Act, 15 U.S.C. 1601 et seq. It was filled out as follows (irrelevant portions omitted):


 1. CASH PRICE                              $2,105.28
     PRICE                                   1,805.28
 6. FINANCE CHARGE                               None
 7. TOTAL OF PAYMENTS                        1,805.28
 8. DEFERRED PAYMENT PRICE                   1,805.28
 9. ANNUAL PERCENTAGE RATE                       None
10.  PAYMENT SCHEDULE: The total of payments
(Item 7) is payable at seller's office . . . in
24 installments of $75.72 each, commencing
6/8/1971 and on the same day of each successive
month thereafter.

Five months after the transaction, appellant sued under 15 U.S.C. 1640, seeking civil damages against appellee for failure to comply with id. 1638(a) (6), (7). Those subparts require the vendor to disclose the amount of finance charge and to express the finance charge as an annual percentage rate.


The parties submitted the case for judgment upon an agreed statement of facts. They stipulated, inter alia, that appellee had purchased the car for $760 and that for 'extra clean' cars of the same make and year as appellant's the Official Used Car Market Guide Weekly Black Book showed an average Alabama retail price of $1780 during the week in which the transaction at bar was consummated.


The District Court held that the transaction did contain an undisclosed finance charge in violation of 1638. The appellee does not challenge this finding by cross-appeal. The trial court went on to state, however, that the amount of the charge could not be determined. Therefore, it limited appellant's recovery to the statutory minimum (see 15 U.S.C. 1640(a)(1)) of $100, plus $750 in attorney's fees.


The appellant's recovery should not have been limited to $100. The parties stipulated to the highest figure customarily charged in Alabama for similar merchandise during the relevant time period. Under these peculiar circumstances the difference between that figure and the total amount to be paid by appellant necessarily constituted the amount of the finance charge which the court found existed. Appellant should have recovered twice $325.28, or $650.56.


Reversed and remanded for entry of judgment for $650.56 plus $750 in attorney fees. The District Court shall award attorney fees for services of appellant's counsel on this appeal.