In LeFoll v. Key Hyundai of Manchester LLC, 2011 WL 6153171 (D.Conn. 2011), Judge Egington held that a car dealer’s printing malfunction on a class of consumers’ RISCs violated TILA as to both the dealer and the assignee finance company. The facts were as follows. On June 30, 2009 plaintiff purchased a Hyundai Sonata pursuant to a retail installment sales contract from Key. The contract did not clearly disclose the date that the first payment became due because the due date was printed over preexisting text. All of the 103 other class members’ contracts share the same deficiency, i.e., the payment dates are difficult to discern because they occupy the same space as a pre-printed portion of the contracts. The retail installment contracts for plaintiff and the class members were assigned to Citizen’s. Plaintiffs contended that Key violated TILA by failing to clearly disclose the dates that the first payments became due, and also sought to hold the assignee liable under TILA because it accepted assignment of retail installment contracts that contained TILA violations which were apparent on the face of the contracts. Judge Egington granted Plaintiff’s Motion for Summary Judgment, explaining:
Subpart C of Regulation Z requires that creditors disclose “the number, amounts, and timing of payments scheduled to repay the obligation.” 12 C.F.R. § 226.18(g). “The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep.” 12 C.F.R. § 226.17(a). Courts measure whether disclosures were made clearly and conspicuously using an objective test. Aubin v. Residential Funding Co., LLC, 565 F.Supp.2d 392, 395 (D.Conn.2008). Thus, the question becomes whether or not an average, reasonable person would find the disclosures to be clear and conspicuous. ¶ . . . The payment due date is not clear or conspicuous on any of the 104 contracts. The printed due dates range from indistinct to indiscernible, but an average, reasonable person could not find any of the disclosures to be clear and conspicuous. As such, plaintiff and the class are entitled to summary judgment on count one because there is no genuine issue of fact as to whether defendant Key failed to clearly and conspicuously disclose the first payment due date. ¶ . . . Except as otherwise specifically provided in this subchapter, any civil action for a violation of this subchapter or proceeding under section 1607 of this title which may be brought against a creditor may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary. For the purpose of this section, a violation apparent on the face of the disclosure statement includes, but is not limited to (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required to be used by this subchapter. ¶ In the present case, the violations on the con-tracts assigned to Citizen’s are apparent on the face of the disclosure statements.