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Show T f THE DAILY RECORD PACK FOUR WEDNESDAY, AUGUST 1, 1973 In The Supreme Court Of The State Of Utah Emmett Don Knox and Counsel i Raymond R. Knox, Plaintiffs and Respondents, legislation provided that persons wilfully and knowingly violating certain provisions of the act would be guilty of a misdemeanor. However, it appears that the legislative intent was to rely on a system of private policing by permitting those who might be wronged by violations of the act to recover penalties.. The Federal fruth In Lending Act also contains the same provisions regarding enforcement. The defendant admitted that he failed to disclose the annual percentage rate in the contract and we must conclude that the trial court correctly ruled The that the defendant failed to establish a defense under Section wisdom of the statutory scheme is not for the court to decide. Doyle Jeffs 900 H. 100 E. No. 13172 Provo M. FILED v. Stiles M. Thomas dba Ty's Auto Sales, Counsel 1 July 10, 1973 Vendell P. Allen 1599 S. 84105 Defendant and Appellant. 7th E. 70B-5-203(- L. M. Cummings, Clerk 3), The record before us reveals no error in the decision of the court below which would justify our interference. The judgment of the district court TUCKETT. Justice: is affirmed. Respondents are entitled to costs. The plaintiffs brought these proceedings pursuant to the provisions 3, Utah Code Annoof the Uniform Consumer Credit Code, Section below The as entered court amended. tated 1953, judgment in favor of the plaintiffs, and the defendant appealed. 70B-5-20- WE CONCUR: The defendant is a used car dealer and as such entered into an installment sales contract with the plaintiffs on September 15, 1971. The defendant prepared a contract in question and computed the finance charge to be added to the purchase price. The defendant failed to calculate or to enter the annual 4, which percentage rate in the contract as provided for by Section as follows: reads F. Henri Henriod, Justice J. Allan Crockett, Justice 70B-2-30- (1) Except as otherwise specifically provided, if a N 1. Ratner v. Chemical Bank New York Trust Co. , 329 Fed. Supp. 270; Joseph v. Norman Health Club, Inc., 336 Fed. Supp. 307; Buford v. American Finance U.S. , 93 S. Ct. Co., 333 Fed. Supp. 1243; Mburning v. Family Pub. Ser., , 36 L. Ed. 2d 318. seller is required to give to a buyer a statement of the rate of the credit service charge he shall state the rate in terms of an annual percentage rate as defined in subsection (2) or in terms of a corresponding nominal annual percentage rate as defined in subsection (3), whichever is appropriate. ELLETT, Justice: (Dissenting) dissent. I think the ruling of the trial court and the main opinion this court are too technical to stand, and I would like to explain why. I Thereafter the plaintiffs commenced these proceedings for the purpose of rewhich provides as covering the penalty provided for by Section 70&-5-20- 3, follows: tor 70B-2-3- The total amount of money which plaintiffs herein agreed to pay for the automobile when they bought it was $2, 154, 96 cash. The defendant as seller added $646.64 for interest and handling charges, making a total of $2,801.60. This was to be paid not at the same rate each month during the life of the contract but at the rate of $126.72 per1 month for five months, then $86.72 per month for 25 months. The statute provides that the seller may charge interest at the rate 36 per cent per year on the first $300, 21 per cent per year on the next $700, and 15 per cent per year on all amounts over $1,000. The contract was to run for two and one-ha- lf years, and all parties agreed that the amount charged by way of interest and handling charges did not exceed the amount permitted by law. (1) Except as otherwise provided in this section, a crediwho, in violation of the provisions on disclosure (sections Credit the chapter ...)... fails to disclose information to person entitled to 01 70B-2-3- on of 13 to a Sales . . . an to in that liable this act is the information under person amount equal to the sum of (a) twice the' amount of the credit service or loan finance charge in connection with the. transaction, but the liability pursuant to this paragrajdi shall be not less than $100 nor more than $1,000; and (b) in the case of a successful action to enforce the liability under paragraph (a), the costs of the action together with reasonable attorney's fees as determined by the court. Only the defendant testified in the matter, and he unequivocally stated that he was unable to calculate the average rate of interest which would yield the figure which he charged. ' The defendant makes no claim that he did in fact comply with the statute on disclosure but interposed a defense under the provisions of Section which reads as follows: 70B-5-203(- 1 1. (3) A creditor may not be heldliable in any action brought under vthis section for a violation of this act if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error. I do not believe that the statute which required the seller to state the annual rate of interest was meant to be applied to a situation like this where, in order to accommodate the purchaser, the monthly payments are eo varied that it ie impossible to calculate the rate of interest. Especially ie this so where the amount of interest is stated in the contract and is not in excess of that permitted by law. The provisions of the statutes above referred to are a part of the Utah Uniform Consumer Credit Code which was adopted by the legislature in 1969. The provisions of the Utah Act follow 'closely the federal statute known as the Truth In Lending Act. The legislation was championed by lenders and their various organizations who were willing to assume the duty of disclosure for the right to charge higher rates of interest provided for in the legislation. .. The . Norelco 95 R, 381 Prudential Service to Rich Prows Inc. Same 733 as 381. Harvey D. Hansen etux Harvey D. Hansen etux. 602 626 Guniersen Brothers Dwight C, Nickle etux, IWM) Key Business Machines 21 Kelsey Ave. Salt Lake City, Utah Telephone (801) In Ogden 322-228- 4 397-741- 1 to Gunderson Brothers to Ellis your kieaa, notes and reports easie- r- anytime, anywhere. Unique "Idea capsule, provides 30 minutes of quality voice recording, plus many outstanding features. Tha Norelco 95 belongs tayour pocketl to 628 Gunderson Brothers to Jerry E, Prlffls etux, 632 to - Scheibners Health Food Store, Inc., 158 S. State St. to Transcntntl Refrig; SLC 630 'When your business takas you out of the offica, dictate all Callister, Chief Justice, concurs M. Hunt etux. Gunderson Brothers Inc. Dale V. Allen etux. equip American Equity to Major Enterprises. 723 American Equity to Major Margetts, 2075 W. Jrdn to Hudsons Bay 743 - Duane R. Daniel, 1719 S. 1100 E. SLC to Freight Outlt hhg 745 - Darrell W. Whitebear, 3245 S. 1530 E. SLC to Freight Outlet; fum - Charles Vanderveeo, 3228 Richrds St. SLC to Natnl Fin; fum Enterprises, 869 T and C, Auto Carp, Brent Howies, etux. to Prudential Service to Richard Prows I no, - Auto Leasing, Inc, 1231 S. Main SLC to Frst Secur 747 Bk; AAA vehicles 748 - Keith 4380 W. SLC Griffiths, 4956 S. to Lckhrt Fin Co; fum 895 753 - Taylor A. Jeppson, 3698 E. Oakvw Dr. SLC to Frst Secur Bk of Ut; in'en Skyview Development to J. - John S. 100 E. Dodge M. Johnson, 1196 Bntfl to Menlove Toyota; cmpr Toyota; cmpr 759 S. -- W. .Wastach Temple - Massoud and Julie Shaflzadeh, 265 4th Ave. SLC to Avco Finan Serv; consmr gds 766 - John Alfred, 280 S. Bntfl to Avco Finan Serv .425 U. hhg - Joseph A. Martinez, 3828 S. 1860 E. SLC to Avco Finan 768 Electric, to Rck SLC 1574 Wrnr Frd; equip Serv; cnsmr gds - Roger Sutherland, 7148 S. 350 E. Mdvl to Vly Bk & 770 761 - Keith A. Kenoall, 3640 Carolyn St. SLCto Cntntl Bk & Trst co; orgn 762 Market St. Grngr to Avco Finan Serv; consmr gds 767 756 - Blaine G. Pearce, 580 N. Main Bntfl to Menlove Dodge - Joseph A. Martinez, 172 Bntfl to AvcoFnan H. 2nd N. Serv; tv 763 874 Robin Dleelngsr etux. 754 - Ralph Davis, 5091 S. 4460 W. Krns to petersen Mtr Co; cmpr 75.5 739 - Glen 6670 S; U. Co; mink 746 720 in the opinion of Mr. Justice Ellett, Financing Statements Errett etux. Notetaker Battery operated ant costs. ? 318 Palmers Building to Jerry 382 Fits any pocket Only 10 ozs. reverse the trial court and remand the matter with directions to enter judgment for the defendant. I would also award the defend I would Warranty Deeds Executive Wallet thin Utah Code Annotated 1953, as amended. 1, ( 3). ' NEW 70B-2-20- Counsel for plaintiffs then stated, "But nevertheless, that's what the disclosure requirements are, that they must disclose what the annual percentage rates on the face of the contract so that the people can know what they are really paying for the financing on this contract. " had upon the issues, and thereafter the court made a finding to the effect that the defendant had failed to establish a defense pursuant to the provisions of Section It is the defendant's claim here that the evidence fails to support the finding of the court and that the case should be reversed. Worlds smallest idea machine Section "It would be extremely difficult to figure out what the annual rate would, eic wouldn't it? . . . You probably couldn't do it. I doubt if I can do it." trial was 70B-5-203(- matter after the evidence was all in, the court laid, In discussing the 3), A of Trst Co; cmpr 775 - Edward S. Mortensen, 562 E. 4500 S. Mry to Mry Frst Thrft & Ln; hhg - Norman K. Bassett, 435 Crkside Lane SLC to Mry Frst 777 - Steven H. Alvey, '5102 St. Krns to Avco Finan Serv; consmr gds Thrft & Ln Co; hhg Hope 764 - Floyd Thompson Jr., Gregson Ave. SLC to Avco Finan Serv; consmr gds 51 E. 765 - Frederick Montoya, 3816 - Jan L. Mlkesell, 2384 Catalina Dr. SLC to Zlons Frst Natnl Bk; boat 778 779 - Trine E. Lopez, 8050 S. 1645 W. W. Jrdn to Easy Living Mbl Homes; hhg |
