## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3791

___________ Michael Hess, personal representative * of the Estate of George E. Hess, *
* Plaintiff/Appellant, * * Appeal from the United States George E. Hess, * District Court for the * Western District of Missouri. Plaintiff, *
* v. *
* Citibank, (South Dakota), N.A., *
* Defendant/Appellee. *

___________ Submitted: June 14, 2006 Filed: August 14, 2006

___________ Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

___________ COLLOTON, Circuit Judge.1 The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.
-2- Michael Hess, personal representative of hi s father’s estate, appeals the district court’s 1 grant of summary judgment dismissing th e estate’s claims under state law and the Truth in Lending Act, 15 U.S.C. §§ 1601-1667f (“TILA”). We affirm.

I.

Michael Hess’s father, George Hess, wa s the holder of a Citibank Visa credit card when he died on August 29, 1998. At the time of his death, his account balance was $889.58. On November 6, 1998, the probate court of Jackson County, Missouri, appointed Michael Hess the personal representative of his father’s estate. On February 24, 1999, Citibank filed a clai m for $889.58 in the probate es tate and attached a copy of George Hess’s credit card statement dated September 10, 1998, reflecting this account balance.

Michael Hess, on behalf of the estate, sent Citibank a check for $974.96 in December 2000, apparently rely ing on the last statement received by his father prior to his death, which listed this higher amount as the balance due. This older statement, dated August 11, 1998, did not reflect either a payment of $100 that posted on August 27 or finance charges added to the account by Citibank, which resu lted in the balance of $889.58 on the September 1998 statement. Citibank’s internal statements from November 1998 through November 2000, whic h were never mailed to George or Michael Hess, list an account balance of $968.22. The estate’s payment posted on December 11, 2000, and Citibank’s internal statements dated December 11, 2000, and January 10, 2001, both list a credit of $6.74.

On June 9, 2004, Michael Hess filed suit inthe district court, claiming Citibank owed his father’s estate a refund of $85. 38, which represented the difference between-3- Citibank’s claim in probate and the estate’s payment, or, at a minimum, $6.74, the credit balance reflected on Citibank’s intern al statements after the payment. He alleged that Citibank had failed to refund the credit and had instead “swept” the credit into its own general account, then had “cove red up” the allegedly unlawful transaction by failing to provide periodic statements, in violation of the TILA and Regulation Z, 12 C.F.R. §§ 226.1-226.36. He also alle ged violations of state law, including conversion, breach of contract, breach of the covenant of good faith, fraud, money had and received, and unjust enrichment. Hess purported to sue on behalf of a nationwide class of consumers whose accounts allege dly had been swept by Citibank after 60 days of inactivity.

In response, Citibank moved for summary judgment, arguing that Hess could not prove one essential el ement necessary to every count in the complaint – i.e ., that Citibank had misappropriated an account balance properly due to George Hess’s estate – and thus could not seek re lief on behalf of himself or any member of the purported class. Citibank claimed that it was entitled to interest th at had accrued during the two years between the date in Fe bruary 1999, when it filed its claim in the probate court, and Michael’s payment in December 2000. Citibank contended that, whether the amount of interest was calcu lated according to the terms of the cardmember agreement attached by Hess to his complaint or under Missouri’s statutory interest rate, the balance on the account as of Decembe r 2000 exceeded the $974.96 payment, so Citibank did not owe any mone y to George Hess’s estate.

The district court stayed discovery pending resolution of the motion for summary judgment, and then granted Citib ank’s motion. The court calculated the amount of interest that would have accrued on the account through December 2000 employing three different potential methodologi es. Using the annual percentage rate of 18.90% listed on the statement dated Se ptember 10, 1998, the court calculated the total interest that would have accrued under both variable and fixed rates, and then, as a third alternative, calculated the total interest accrued using the statutory rate of-4- 9% per annum, as provided by Missouri Rev ised Statutes § 408.020. The court reasoned that under any method of computi ng interest, the balance on George Hess’s account in December 2000 would have been gr eater than $974.96. The court observed that the cardmember agreement submitted by Hess states that finances charges continue to accrue until payment-in-full is credited to the account, and concluded that once Citibank was notified of George Hess’s death, the TILA and Regulation Z do not require Citibank to continue to send monthly statements to his estate. The court concluded that Citibank had de monstrated that it was entitled to interest, and that the total account balance was more than the payment, so “there was no overpayment and no credit balance owing to Geor ge Hess’ account.” The court therefore held that Hess could not “prove an essential element of eachof his seven claims .” (App. at 439-440).

II.

On appeal, Hess argues that Citibank viol ated the TILA because it did not send a billing statement to the estate disclosi ng “how and when it supposedly charged the interest eliminating the positive credit balance” in George Hess’s account. (Appellant’s Br. at 33 n.9). Under section 127(b) of the TILA:

[t]he creditor of any account under an open end consumer credit plan shall transmit to the obligor, for eachbilling cycle at the end of which there is an outstanding balance in th at account or with respect to which a finance charge is imposed, a st atement setting forth each of the following items to the extent appli cable: . . . (4) [t]he amount of any finance charge added to the account during the period.

15 U.S.C. § 1637(b). Hess argues that upon Ge orge Hess’s death, his estate became the “obligor” entitled to periodic statements, because it “was obligated to pay the debt and was treated as an obligor by Citibank when it submitted a claim against the estate in the Hess probate.” (Appellant’s Br. at 32). Hess also claims that Citibank’s failure-5- to send account statements to the estate violated the disclosure requirements of Regulation Z. Citibank responds that it was not required to send statements to George Hess’s estate for three independent reasons, one of which is that the Hess estate was not an “obligor” within the meaning of 15 U.S.C. § 1637(b).

Congress has delegated to the Board of Governors of the Federal Reserve System the authority to prescribe regulati ons that may contain “such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of [the TILA], to prevent circumvention or evasion thereof, or to facilitate co mpliance therewith.” 15 U.S.C. § 1604(a). Congress has specifically designated the Board as the primary source for interpretation and application of the TILA, see Household Credit Servs., Inc. v. Pfennig , 541 U.S. 232, 238 (2004), empowering it to formulate in terstitial policy and to create rules for administering the statute.

In reviewing the agency’s construction of the statute, if Congress has “directly spoken to the precise question at issue, ” then we must “give effect to the unambiguously expressed intent.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-43 (1984); see also First Nat’l Bank of Council Bluffs v. Office of the Comptroller of the Currency , 956 F.2d 1456, 1462-63 (8th Cir. 1992) (finding the statutory phrase “immediate preceding examination” in section 108(e)(3)(i) of the TILA to be unambi guous). Otherwise, where Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, U.S.A., Inc. , 467 U.S. at 843-44. Absent a clear expression of congr essional intent, legislative regulations are given contro lling weight unless they are “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844. Deference to the views of the Board is “especially appropriate” in the process of interpreting the TILA, given the agency’s “pivotal role in setting th e statutory machinery in motion,” broad-6- administrative lawmaking power delegated by Congress, and unique position to navigate the complexities of the statute striking the appropriate balance between “competing considerations of complete disclosure and the need to avoid informational overload.” Ford Motor Credit Co. v. Milhollin , 444 U.S. 555, 565-569 (1980) (internal quotations omitted).

The TILA does not define the term “obligor” used in section 127(b). As we shall explain below, there is a substantial ar gument that the text and structure of the TILA unambiguously excludes an estate from th e scope of “obligor,” but at best for Hess, the term is ambiguous. The Board enacted Regulation Z to implement the TILA, see 12 C.F.R. § 226.1(a), and it is entitle d to deference in applying ambiguous terms. Sections 226.5-226.16 of Regulation Z include the regulatory provisions that govern open-end credit plans, see Schnall v. Marine Midland Bank , 225 F.3d 263, 266-69 (2d Cir. 2000), and it is evident thatthe Board intended 12 C.F.R. § 226.7 to define the scope of a creditor’s obligations to disclose periodic statements for openend credit plans. Creditors need “sure guidance through the highly technical Truth in Lending Act,” and Congress, indelegating regulatory authority to the Board, has chosen to resolve interpretive issues under the TILA by “uniform administrative decision, rather than pi ecemeal through litigation.” Ford Motor Credit Co. , 444 U.S. at 567-68 (internal quotation omitted). We therefore look to whether the pertinent regulation permissibly defines th e disclosure obligations of creditors in this area, and we “refrain from substituting [our] own interstitial lawmaki ng for that of the Federal Reserve, so long as the latter’s lawmaking is not irrational.” Id . at 568; see also Household Credit Servs., Inc. , 541 U.S. at 244.

According to the governing regulati on, “[t]he creditor shall furnish the

consumer with a periodic statement that discloses . . . [t]he amount of any finance charge debited or added to the account during the billing cycl e, using the term ‘finance charge.’” 12 C.F.R. § 226.7(f) (emphasis a dded). The term “consumer” is defined in the regulation as “a cardholder or a natural person to whom consumer credit is offered-7- or extended,” 12 C.F.R. § 226.2(a)(11) (e mphasis added), while a “cardholder” is defined as “a natural person to whom a credit card is issued for consumer credit purposes, or a natural person who has agreed with the card issuer to pay consumer credit obligations arising from the issuance of a credit card to another natural person.” 12 C.F.R. § 226.2(a)(8) (e mphasis added). Thus, under the plain language of Regulation Z, a creditor is required to furnish periodic statements only to natural persons. This duty does not extend to organizations, such as an estate. Cf . 12 C.F.R. § 226.2(a)(22) (defining “person” as “a natural person or an organization, including a corporation, partnership, proprietorship, association, cooperative, estate, trust, or government unit”); id . § 226.2(a)(7) (defining “card issuer” as “a person that issues a credit card or that person’s agent with respect to the card”) (emphasis added).

We believe that the regulation’s requi rement that only natural persons be furnished with periodic statements is a permissible reading of the TILA, and, indeed, the better construction of the text, structure, and design of the statute as a whole. See Household Credit Servs., Inc. , 541 U.S. at 239. The TILA, like Regulation Z, also sets up a clear distinction between “pers ons,” which may include an estate, and “natural persons.” See 15 U.S.C. § 1602(c), (d). Section 127, which requires a creditor to send the “obligor” a statement for each billing cycle in which a finance charge is imposed, is entitled “open end consumer credit plans,” and sets forth standards, including the periodic statement requirement, specifically applying to these accounts. 15 U.S.C. § 1637. In a definition section, the statute explains that “[t]he adjective ‘consumer,’ used with reference to a credit transacti on, characterizes the transaction as one in which the party to whom the credit is offered or extended is a natural person , and the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1602(h) (emphasis added). For an extension of credit to be considered an extension of “consumer” credit, the party to whom the credit is extended must be a natural person. Am. Express Co. v. Koerner , 452 U.S. 233, 241 (1981). Although the statute does not specifically define th e term “obligor,” the use of the term in a section-8- regulating open-end consumer credit plans implies that the party to whom credit is being extended, i.e. , the obligor, is a consumer, and thus a natural person. At a minimum, the Board’s decision to adopt a re gulation consistent with that reading of the statute is not irrational. Therefore, Citibank did not violate the TILA by failing to send periodic statements to the Hess estate.

III.

The remaining claims in the lawsu it depend upon whether, under Missouri law, George Hess’s account had a credit balance at the time Citibank allegedly swept the funds into its own accounts. Hess argues that Citibank di d not include interest on its claim in probate court. Missouri RevisedStatutes § 473.360(1) provides that all claims against an estate not submitted inthe probate proceeding are extinguished, so Hess contends that Citibank cannot now claim entitlement to interest on the probate claim or recover on any claims not made inthe probate court. Because Citibank only demanded $889.58 in probate, Hess asserts, his payment of $974.96 resulted in a credit balance in the account. Citibank counters that it wa s entitled to both contractual and statutory prejudgment interest on its clai m filed in probate c ourt. It argues that the amount of this interest, plus the origin al debt, was greater than the amount paid by Hess, so there was never a credit ba lance in the account to be “swept.”

Under Missouri law, “the strict rules of pleadings in circuit court petitions do not apply to probate proceedings,” and it is sufficient if the pleadings “give reasonable notice of the nature and extent of the claim.” Ryan v. Spiegelhalter , 64 S.W.2d 302, 308 (Mo. banc 2002) (internal quot ations and citations omitted); see also Jensen v. Estate of McCall , 426 S.W.2d 52, 55 (Mo. 1968); Matter of Estate of Woodrum , 859 S.W.2d 259, 261 (Mo. Ct. App. 1993). Clai ms filed in probate court “must be construed liberally and favorably to plainti ffs, giving them the benefit of all inferences fairly deducible from the facts stated therein.” Woodrum , 859 S.W.2d at 261 (internal quotation and citation omitted); see also Jensen , 426 S.W.2d at 57.-9- Even in cases outside of probate, an express allegation seeking prejudgment interest is not a prerequisite to the award of such interest. Watters v. Travel Guard Int’l , 136 S.W.3d 100, 111 (Mo. Ct. App. 2004). A probate clai m that states a specific dollar amount, and nothing more, apparently is insufficient to justify an award of interest, Estate of Strauss v. Schaeffer , 781 S.W.2d 274, 275 (Mo. Ct. App. 1989), but under the liberal standard of probate pl eadings, “reasonable notice” does not require a specific mention of interestin the claim. For exampl e, a general open-ended prayer for relief is sufficient to allow recovery of prejudgment interest, see Call v. Heard , 925 S.W.2d 840, 853-54 (Mo. banc 1996), and notice of a claim for interest may be provided by documents attached to a clai m and reasonable inferences that can be drawn from those documents. See Jensen , 426 S.W.2d at 57; see also Ryan , 64 S.W.3d at 308-09 (relying on contracts inco rporated in pleading by reference to discern claim for interest in real property).

In this case, Citibank’s claim against Ge orge Hess’s probate estate states that “there is due from the above-captioned es tate the sum of $889.58 on account of [a] Revolving Credit Card Charge for Acct. #(s): 4128003159868812. Please see attached billing statement.” (App. at 74). The attached billing statement lists a “new balance” of $889.58, sets forth a minimu m amount due of $20.00, and provides a payment due date of Octobe r 5, 1998. The statement also shows that the “new balance” includes the accrual of $14.62 in finance charges over the thirty days prior to the statement date, lists an annual pe rcentage rate of 18.90%, and includes a “balance subject to this charge” of $928.29. ( Id. ). The ongoing accrual of finance charges and the notation that the monthly outstanding balance on the account is subject to finance charges at a rate of 18. 90% conveys the information that the balance on George Hess’s account is subject to intere st charges. The incorporation of the billing statement into Citibank’s probate clai m, read liberally and in light of the minimal pleading requirements of Missouri probate law, leads to the reasonable inference that Citibank was requesting intere st as listed on the statement, and provides reasonable notice that Citibank’s probate claim included interest.-10- We thus conclude that C itibank adequately pleaded a claim for interest, and we turn to Citibank’s contention that it wa s entitled to prejudgment interest based on either a contract with Hess or the Missouri statute on prejudgment interest. Hess argues that Citibank was not entitled to contractual intere st, because although several cardmember agreements are inthe record, and each of th em plainly contemplates an interest rate well above the rate necessary to defeat Hess’s claim, Citibank did not produce the specific agreement governing the parties at the time of George Hess’s death in 1998. Assuming without deciding th at Citibank failed to prove its entitlement to contractual interest, its pleading of a cl aim for contractual interest authorizes an award of interest under the Missouri statute. The statute provides that “[c]reditors shall be allowed to receive interest at th e rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made.” Mo. Rev. Stat. § 408.020. This provision applies whether or not a party specifies the statutory authority under which it seeks prejudgment interest, Springfield Land & Dev. Co. v. Bass , 48 S.W.3d 620, 633 & n.9 (Mo. Ct. App. 2001), and if a demand for payment is not made prior to the filing of a lawsuit, the filing itself constitutes a demand. Watters , 136 S.W.3d at 111. As a general rule, “an award of prejudgment interest in a case where § 408.020 is applicable is not a matter of court discretion; it is compelled.” Bass , 48 S.W.3d at 633 (internal quotation omitted).

Citibank was entitled to statutory interest from February 24, 1999, the date that it filed its claim in probate demanding payment, through December 10, 2000, the date on which the estate paid $974.96 to Citibank. This interest, at the statutory rate of 9% per annum, totals $143.89. With an in itial balance of $889.58, the estate owed Citibank at least $1033.47 at the time of the estate’s payment of $974.96. Accordingly, there was no credit balance at the time of the alleged sweeping, and Hess cannot prove an essential element of each of his claims.-11- IV.

Hess also argues that the district c ourt erred in staying discovery pending resolution of the motion for summary judgm ent. We review a district court’s determination that a claim is ripe for summary judgment for abuse of discretion, applying federal law. In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig. v. Dow Chem. Co. , 113 F.3d 1484, 1488-89 (8th Cir. 1997). Discovery need not be completed before a court may grant summary judgment, id. at 1489-90, and it is not necessary in every situation. Iverson v. Johnson Gas Appliance Co. , 172 F.3d 524, 530 (8th Cir. 1999). If the failure to allo w discovery “deprive s the nonmovant of a fair chance to respond to the motion, how ever, summary judgment is not proper and will be reversed.” Id.

The parties do not dispute the basic underlying facts upon which the district court granted summary judgment. While Hess listed a number of allegedly disputed facts in his appellate brief, these facts eith er do not bear on the issues before the court, see, e.g. , Newport v. Ford Motor Co ., 91 F.3d 1164, 1167 (8th Ci r. 1996), or are legal questions, suitable for resolution without discovery. See DeGrassi v. City of Glendora , 207 F.3d 636, 643 (9th Cir. 2000). Because the evidence that Hess sought to discover would not rebut Citibank’s eviden ce that there was no cr edit balance at the time of the alleged sweeping, the district court did not abuse its discretion by staying discovery. Newport , 91 F.3d at 1167; Dravo Corp. v. Zuber , 13 F.3d 1222, 1228 (8th Cir. 1994).

* * *

The judgment of the district court is affirmed.

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