* District Judge for the Northern District of Texas, sitting

by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 94-60754.

Juanita B. FAIRLEY, Plaintiff-Appellant,

v.

TURAN-FOLEY IMPORTS, INC., d/b/a Turan-Foley Mitsubishi,

Defendant-Appellee.

Oct. 3, 1995.

Appeal from the United States District Co urt for the Southern

District of Mississippi.

Before E. GRADY JOLLY and BENAVIDES, Circuit Judges, and

FITZWATER * , District Judge.

E. GRADY JOLLY, Circuit Judge:

Congress designed the Truth-in-Lending Act ("T I LA"), 15

U.S.C. § 1601 et seq., to protect consumers from inaccurate and

unfair credit practices. Juanita Fairley took advantage of the Act

and sued Turan-Foley Imports, Inc. ("Turan-Foley"), alleging

violations of the TILA and state law against misrepresentation

related to Fairley's purchase of a car. Her financing agreement

listed 8.5 percent as the annual percentage rate, when the actual

rate was 11.75 percent annually. When she took possession of the

car, she was also under the impression that she had obtained credit

life and disability insurance, as wel l as an extended warranty.

After denying Turan-Fol ey's motion for summary judgment, the

district court, acting on a motion for reconsideration, found that

because no contract existed between the parties, it lacked subject2

matter jurisdiction over the case, and subsequently dismissed the

case. Fairley appealed. Contrary to the district court's action,

we believe this is the type of case for which Congress tailored the

TILA. For the reasons explained below, we hold that the district

court erred when it determined that a contract between the parties

did not exist under Mississippi law, and, thus, the district court

erred when it dismissed the case for lack of subject matter

jurisdiction. Accordingly, we reverse and remand for further

consideration.

I

This case comes to us in a rather unusual posture. A thorough

discussion of the facts and procedural history therefore will help

to explain the result we reach today.

On July 24, 1992, Juanita Fairley went to Turan-Foley to shop

for a new automobile. Finding a 1992 Mitsubishi Eclipse sports car

that she liked, Fairley completed and signed a credit application

form from General Motors Acceptance Corporation ("GMAC") that had

been given to her by a Turan-Foley finance and insurance manager,

Thomas Matherne. Matherne promised Fairley a competitive interest

rate of 8.5 percent. Wishing to check her credit union for a

better interest rate, Fairley left the dealership. Matherne,

however, called Fairley before she had time to check other rates

and convinced her to return to Turan-Foley to see what he could

offer her through GMAC.

On July 27, 1992, Fairle y returned to Turan-Foley and spoke

with Matherne and Jimm y Yelverton, the general manager of the3

dealership. Fairley told them that she wanted her payments to be

between $250 and $267 per month for sixty months, a nd that she

wanted credit life and disability insurance, as well as an extended

warranty. She took the Eclipse for a test drive, and signed forms

for credit life and disability insurance, an application for a

certificate of title, and a sheet stating tha t Turan-Foley would

install air conditioning and provide other services (the "We owe"

document). The record also indicates that Fairley made a

downpayment on the car in the amount of $1,000, which was received

by the dealership on July 29. Fairley did not take the car home

after the July 27 vis it, but instead arranged to pick it up on

Friday, July 31.

When Fairley arrived to claim the car on Friday, she spoke

with Matherne and reminded him that they still had to complete an

agreement regarding financing. Matherne told her that it was all

taken care of and that a copy was in the glove compartment. When

Fairley examined the supposed agreement, she found that it was not

satisfactory for several reasons. First, the piece of paper that

was called an agreement by Matherne was actually a partial copy of

a finance agreement; that is, the lower portion of the page was

missing. Second, this lone piece of paper was not what Fairley

anticipated as a contract for the sale of the car. She expected

the contract to be in a "pack" of documents. Third, the space on

the agreement where the annual percentage rate and the finance

charge were located was completely covered by a white sticker, so

that the area was blank. When Fairley confronted Matherne with4

these shortco mings and demanded a complete agreement, Matherne

first told her that he could not give her the contract because, as

it was late on a Friday afternoon, everything was already locked

for the evening. When this information did not appease her, he

agreed to write in the area reserved for the annual percentage rate

and the finance charge that the annual percentage rate was 8.5

percent for 60 months, he noted on the paper that the o riginal

contract could be obtained on Monday, August 3, and he signed this

notation. Despite Matherne's assurances that everything was okay,

Fairley was bothered by the fact that she had not actually signed

what she considered to be a contract, the financing agreement.

On Monday, August 3, 1992, Fairley tried repeatedly by phone

to c ontact Matherne, but he could not be reached. She did,

however, leave a message that she wanted her contract. After

several unsuccessful attempts to reach Matherne that week, Fairley

was phoned by a representative of the dealership on Saturday,

August 8, about returning to Turan-Foley to sign papers. Fairley

could not go to the dealership at that time because she was about

to travel out of town for the remainder of the weekend, but she

told the representative that she wanted the papers so that she

could consu lt a lawyer about the transaction. During the

conversation, the representative said that he did not want to give

the papers to her if she planned to visit a lawyer, but that she

should still come to the dealership to sign everything.

While Fairley was away for the weekend, representatives of

T uran-Foley paid several visits to her family and friends,1 The record indicates that the retail installment contract

was assigned to Mitsubishi Credit Corporation as early as July 30

because Turan-Foley received payment for the car from Mitsubishi

on that date.

5 harassing them and demanding that Fairley sign the papers. On

Monday, August 10, after returning from her trip, Fairley consulted

a lawyer about the situation. The attorney recommended that she go

to the dealership and obtain copies of all the docu ments in her

file so that the attorney could examine them before Fairley signed

the documents. When Fairley and a neighbor visited the dealership,

Yelverton, the general manager of the dealership, told Fairley that

everything was okay because Turan-Foley had her signature on a

financing contrac t with Mitsubishi, dated July 27. Fairley

immediately protested that she had never signed a contract with

Mitsubishi, and declared the signature a forgery when Yelverton let

her look at the contract. Yelverton refused to give Fairley a copy

of the signed contract, and he asked her to leave. 1

In August, the first payment on the car became due. Fairley

hand-delivered to Yelverton a check payable to Turan-Foley.

Yelverton first accepted the check, but when he noticed that the

payee was Turan-Foley, he returned the check to Fairley's attorney.

Fairley sent the check and all future payments directly to

Mitsubishi Credit Corporation in Casselberry, Florida, and,

according to the record, has never missed a payment. Fairley

eventually obtained a copy of the financing contract from

Mitsubishi, and learned that she was being charge d the annual

percentage rate of 11.75 percent rather than 8.5 percent, that she6

had no disability nor credit life insurance coverage, and that she

had not received an extended warranty on the car.

Fairley soon filed a complaint in federal district court

alleging violations under the Truth-in-Lending Act, and a state

claim of fraudulent inducement into the transaction. After some

discovery, Turan-Foley filed a motion for sum mary judgment. The

district court de nied the motion, finding that genuine issues of

material fact existed. Turan-Foley then filed a motion to

reconsider the denial of summary judgment or, in the alternative,

t o dismiss for lack of subject matter jurisdiction. Upon

reconsideration, the district court found that, because Fa irley

never signed a contract, she was not contractually obligated to

purchase the vehicle under Mississippi law. F airley v. Turan-Foley

Imports, Inc., 864 F.Supp. 4, 6 (S.D.Miss.1994). Relying on J ensen

v. Ray Kim Ford, Inc., 920 F.2d 3 (7th Cir.1990), the district

court found that, because there was no contract under state law,

the TILA was inappl icable. F airley, 864 F.Supp. at 7.

Accordingly, the district court found that there remained no basis

for jurisdictio n over the state claim of misrepresentation and

dismissed the suit. Id.

On appeal, Fairley argues that a contract was consummated

under Mississippi law. We agree and reverse and remand for trial.

II

From the district court's memora ndum order, it is unclear

whether it dismissed the case by reconsidering and granting TuranFoley's motion for summary judgment, or by granting the defendant's7

motion to dismiss for lack of subject matter jurisdiction. In any

event, we review de novo the district court's action. S ee

Musslewhite v. State Bar of Texas, 32 F.3d 942, 945 (5th Cir.1994),

cert. denied,

--- U.S. ----, 115 S.Ct. 2248, 132 L.Ed.2d 256 (1995)

( de novo review of Fed.R.Civ.P. 12(b)(1) motion); L ittle v. Liquid

Air Corp., 37 F.3d 1069 (5th Cir.1994) (en banc) ( de novo review of

Fed.R.Civ.P. 56 motion for summary judgment).

A

(1)

The purpose of the TILA is to protect the consumer from

inaccurate and unfair credit practices, and "to assure a meaningful

disclosure of credit terms so th at the consumer will be able to

compare more readily the various credit terms available to him and

avoid the uni nformed use of credit." 15 U.S.C. § 1601(a). "The

TILA reflects a transition in congressional policy from a

philosophy of "Let the bu yer beware' to one of "Let the seller

disclose.' By erecting a barrier between the seller and the

prospective purchaser in the form of hard facts, Congress expressly

sought "to

... avoid the uninformed use of credit.' " M ourning v.

Family Publications Serv. Inc., 411 U.S. 356, 377, 93 S.Ct. 1652,

1664, 36 L.Ed.2d 318 (1973). To that end, Congress, through the

Act, gave the Federal Reserve Board the "authority normally given

to administrative agencies to promulgate regulations designed to

"carry out the purposes of the Act.' " M ourning, 411 U.S. at 365,

93 S.Ct. at 1659. The language of the Act's enabling provision

also emphasized the Board's authority to preve nt evasion of the8

rules. I d. at 371, 93 S.Ct. at 1661. Congress has, therefore,

"delegated expansive authority to the Federal Reser ve Board to

elaborate and expand the le gal framework governing commerce in

credit." F ord Motor Credit Co. v. Milhollin, 444 U.S. 555, 559-60,

100 S.Ct. 790, 794, 63 L.Ed.2d 22 (1980).

Accordingly, the Board of Gover nors of the Federal Reserve

System promulgated Regulation Z to implement the TILA. 12 C.F.R.

§ 226.1(a). A creditor is required by Regulation Z to make certain

disclosures to the consumer, "clearly and conspicuously in writing,

in a form that the consumer may keep." 12 C.F.R. § 226.17(a)(1).

Regulation Z sets out certain gui delines for creditors to follow

when disclosing the amount financed, the finance charge, and the

ann ual percentage rate to the consumer and demands that these

disclosures be accurate. 12 C.F.R. §§ 226.18, 226.22.

To promote the Act's purpose of protec ting consumers, our

court has made clear that creditors must comply strictly with the

mandates of the TILA and Regulation Z.

Only adherence to the strict compliance standard will promote

standardization of terms which will permit consumers readily

to make meaningful comparisons of available credit

alternatives. Strict compliance does not necessarily mean

punc tilious compliance if, with minor deviations from the

language described in the Act, there is still a substantial,

clear disc losure of the fact or information demanded by the

applicable statute or regulation.

Smith v. Chapman, 614 F.2d 968, 971 (5 th Cir.1980) (citations

omitted). Consistent with its purpose, the statute is meant to be

construed liberally in favor of the consumer. C ody v. Community

Loan Corp., 606 F.2d 499, 505 (5th Cir.1979), cert. denied, 446

U.S. 988, 100 S.Ct. 2 973, 64 L.Ed.2d 846 (1980). Even so, the9

"remedial scheme of TILA is designed to deter generally

illegalities which are only rarely uncovered and punished, and not

just to compensate borrowers for their a ctual injuries in any

particular case." W illiams v. Public Finance Corp., 598 F.2d 349,

356 (5th Cir.1979).

(2)

We look to Regulation Z to determine whether Fairley's claim

is one to which the TILA should apply. "Regulation Z obliges

creditors to make the statutorily-mandated disclosures before the

transaction is consummated." D avis v. Werne, 673 F.2d 866, 869

(5th Cir.1982) (internal quotation and footnote omitted).

Consummation is defined under Regulation Z as "the time that a

consumer becomes contractually obligated on a credit transaction."

Clark v. Troy and Nichols, Inc., 864 F.2d 1261, 1264 (5th

Cir.1989); 12 C.F.R. § 226.2(a)(13). State law determines when a

contractual obligatio n is created that binds the consumer to the

credit terms. C lark, 864 F.2d at 1264; 12 C.F.R. § 226, Supp. 1,

Official Staff Interpretations, Section 226.2(a)(13).

B

Because "consummation" is defined by Regulation Z as the

point under state law when a "contractual obligation on the

consumer's part is created," our focus in this analysis is on

Fairley. Thus, "[w]e must examine the transaction through the eyes

of the consumer." C ody, 606 F.2d at 505. The question of

consummation of a contract in Mississippi is determined by

statutory and common law. Mississippi has adopted the Uniform10

Commercial Code, and whether there is an enforceable contract that

satisfies the statute of frauds is governed by Miss.Code Ann. § 75-

2-201 (1981). Generally, a contract for the sale of goods for $500

or more is not enforceable unless there is some writing. Miss.Code

Ann. § 75-2-201(1). "A writing must meet three requirements to

satisfy the statute of frauds: 1) the writing must be sufficient

to indicate that a contract for sale has been made betw een the

parties, 2) the writing must be signed by the party a gainst whom

enforcement is sought, and 3) the writing must specify a quantity."

Migerobe, Inc. v. Certina USA, Inc., 924 F.2d 1330, 1333 (5th

Cir.1991) (in ternal quotations and citations omitted). "The

statute of frauds can be met through the integration of several

documents, each of which alone might not be sufficient to meet

these three requirements." I d. A contract that does not meet the

three requirements but is valid in other respects is enforceable

"if the party against whom enforcement is sought admits in his

pleading, testimony or otherwise that a contract for sale was

made." Miss.Code Ann. § 75-2-201(3)(b). Further, a contract that

does not satisfy the statute of frauds is nevertheless enforceable

"with respect to goods for which payment has been made and accepted

or which have been received and accepted." Miss.Code Ann. § 75-2-

201(3)(c).

I n making the determination that Fairley, the consumer, had

become contractually obligated, we find that additional sections of

the Mississippi Code are relevant to the facts in this case.

Section 75-2-204 states that "a contract for the sale of goods may11

be made in any manner s ufficient to show agreement, including

conduct by both parties which recognizes the existence of such a

contract." Additionally, section 75-2-607 states that the effect

of acceptance of goods is that the buyer must pay at the contract

rate for any goods accepted and acceptance precludes rejection of

the goods accepted. Miss.Code Ann. § 75-2-607 (1972). Finally,

"Acceptance of goods occurs when the buyer (a) after reasonable

opportunity to inspect the goods, signifies to the seller that the

goods are conforming or that he will take or retain them in spite

of their nonconformity; ... or (c) does any act inconsistent with

the seller's ownership." Miss.Code Ann. § 75-2-606.

Whether an enforceable contract exists and whether defenses to

the enforceability of that contract exist should not be confused.

"Questions of the validity, enforceability, and construction of

contracts—whether th e parties have satisfied the law's formal

requisites—are committed to the court as distinguished from the

trier of facts." L each v. Tingle, 586 So.2d 799, 801 (Miss.1991).

While in this case we must determine whether an enforceable

contract exists, we pass no judgment on whether any defenses may

exist to the contract.

C

(1)

Turning to the case before us, we first examine whether the

integration of the writings is sufficient to meet the requirements

of the statute of frauds, and thus sufficient to constitute a

contract between the parties. To make this determination, we look2 See Cody v. Community Loan Corp., 606 F.2d 499, 505 (5th

Cir.1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2973, 64 L.Ed.2d

846 (1980) ("[W]e must examine the transaction through the eyes

of the consumer.").

12 to the various documents of record: Fairley's signed check for

$1,000 accepted by Turan-Foley as a downpayment; the extended

w arranty agreement with Turan-Foley signed by Fairley, requiring

her to pay $300 for coverage on a 1992 Eclipse with a specified

vehicle numbe r; the application for a certificate of title,

describing the buyer, seller, and specific au tomobile, signed by

Fairley and Matherne; the Turan-Foley "We owe" document signed by

Fairley and a dealer representative; and the record of

Mitsubishi's payment of the balance due on the car, indicating that

the financing agreement had been assigned to Mitsubishi Credit

Corporation. Finally, Matherne signed the first retail installment

contract that Fairley received the day she picked up the car. On

this d ocument, Matherne noted that Fairley would receive an 8.5

annual percentage rate, when the figures on the document are, in

fact, consistent with financing at an 11.75 annual percentage rate.

In sum, because the d ealer accepted Fairley's downpayment on the

car, and because the integration of the documents, various of which

the parties executed jointly or individually, indicate there was

agreement on the specific vehicle for sale, the car's retail price,

the interest rate and various coverages in the eyes of the

consumer, 2 we hold that the parties had entered into an enforceable

contract.

(2)3 Turan-Foley, furthermore, asserted for the first time at

oral argument that because Fairley did not sign the contract, no

contract exists under Mississippi's Motor Vehicle Sales Finance

Act. Miss.Code Ann. §§ 63-19-1 et seq., 63-19-31(1)(a). Because

Turan-Foley did not make this argument at the district court, we

13 Furthermore, the parties' actions in this particular case

support our c onclusion that Fairley had incurred contractual

obligations. "A contract for sale of goods may be made in any

man ner sufficient to show agreement, including conduct by both

parties which recognizes the e xistence of such a contract."

Miss.Code Ann. § 75-2-204 (1972). Such a contract, though not

s atisfying the requirements of the statute of frauds, is

nonetheless enforceable with respect to those goods for which

payment has been made and accepted. Miss.Code Ann. § 75-2-

201(3)(c). Fairley and Matherne had discussed financing the car at

an 8.5 annual percentage rate along with insurance and warranty

coverages and had arrived at an oral contract. The car and initial

payments on it were delivered and accepted, and Fairley has

continued to make monthly payments on her car faithfully.

Furthermore, Turan-Foley's quick assignment of the retail

installment contract to Mitsubishi Credit Corporation before

F airley even picked up the car is an act inconsistent with the

dealership's argument that it did not enter into a contract for the

sale of the car. Turan-Foley's argument, that the absence of

Fairley's signature on either financing agreement indicates there

was no consummation, is fully inconsi stent with its conduct

indicating the sale of the car at a specified interest rate, and is

not well taken. 3 Thus, the conduct of the parties in thiswill not consider it on appeal. Earvin v. Lynaugh, 860 F.2d 623,

627-28 (5th Cir.1988), cert. denied, 489 U.S. 1091, 109 S.Ct.

1558, 103 L.Ed.2d 861 (1989).

4 The district court's reliance on Jensen v. Ray Kim Ford,

Inc., 920 F.2d 3 (7th Cir.1990), was misplaced. The enforceable

contract in the case before us is the contract created by the

integration of the several documents discussed in section II,

infra. Fairley relies on this transaction for creation of her

obligation, not on the second, allegedly forged retail sales

document. In Jensen, the plaintiffs relied upon a second, forged

document as a basis for their allegations of TILA violations.

Because a forged note under the applicable state law, Illinois,

was void, the Jensen Court found that the plaintiffs were not

obligated under the contract. Thus, because the Jensens were not

"obligated" under the second contract, the Seventh Circuit,

relying on 15 U.S.C. § 1631, reasoned that the TILA's disclosure

requirements were inapplicable. The case at bar can be plainly

distinguished from Jensen, because Fairley does not rely on the

allegedly forged, second retail sales contract as a basis for her

claim that Turan-Foley violated the TILA. Instead, she relies on

the integration of documents that do not contain a forgery.

14 par ticular case, indicating intent and understanding, viewed in

combination with the various writings between the parties, fully

s atisfies us that the jurisdictional requirements of the Act and

its implementing regulations have been met.

III

Because we hold that a contract between the parties for the

sale of the car was consummated, the district court erred in

finding to the contrary. The district court, moreover, erred when

it found that it did not have subject matter jurisdiction to

consider the TILA claims, and, therefore, we reverse. 4 S e e

Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.), cert. denied,

454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981) ("Where the

defe ndant's challenge to the court's jurisdiction is also a

challenge to the existence of a federal cause of action, the proper15

course of action for the district court

... is to find that

jurisdiction exists and deal with the objection as a direct attack

on the merits of the plaintiff's case."). Because we hold that the

district court had subject matter jurisdiction to consider the TILA

claims, on remand it nece ssarily can consider the pending state

claims. S ee 28 U.S.C. § 1367. The TILA is to be enforced strictly

against creditors and construed liberally in favor of consumers,

and, thus, we REMAND for disposition not inconsistent with this

opinion.

REVERSED and REMANDED.