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Jeffrey C. Vogel v. Onyx Acceptance Corporation

December 19, 2011


Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] The Wyoming Division of Banking (Division) performed a Wyoming Uniform Consumer Credit Code (WUCCC or Code) compliance examination of Onyx Acceptance Corporation (Onyx) and determined it was improperly charging its Wyoming customers fees for making payments by telephone or internet. The Division ordered Onyx to stop charging the fees and refund the fees collected. Onyx appealed the order and the Office of Administrative Hearings (OAH) scheduled a contested case hearing. Onyx and the Division each submitted motions for summary judgment. The OAH issued a recommended decision granting the Division's motion. Consistent with the recommended decision, Jeffrey C. Vogel, the Administrator of the WUCCC (Administrator), issued an order finding that Onyx violated the Code when it charged the fees.

[¶2] Onyx filed a petition for review in the district court. After briefing and a hearing, the district court issued a decision letter in which it concluded the fees were not covered by the WUCCC and, therefore, Onyx did not violate the Code by charging them to customers who opted to pay by phone or internet. The district court reversed the OAH decision and remanded the case for entry of summary judgment for Onyx. The Administrator appealed to this Court. We hold that Onyx did not violate the WUCCC and summary judgment in its favor is appropriate.


[¶3] The Administrator contends Onyx violated the WUCCC by charging customers a fee, that was not disclosed when credit was extended, for making payments by telephone or internet; therefore, the OAH properly entered summary judgment for the Division. Onyx maintains the district court correctly concluded the WUCCC does not prohibit it from charging a fee for optional payment methods it offers to its customers after credit had been extended.


[¶4] Prior to submitting their summary judgment briefs to the OAH, the parties stipulated to certain facts, which we rephrase as follows. Onyx was subject to the regulatory jurisdiction of the WUCCC, Wyo. Stat. Ann. §§ 40-14-101 through 702 (LexisNexis 2011), and the Administrator of the Code with respect to consumer credit sales contracts that it purchased from Wyoming automobile dealers. The contracts Onyx purchased were originally executed by automobile dealers and their customers who purchased automobiles on credit. When Onyx purchased the contracts, the dealers assigned them to Onyx and the customers then made the payments on their contracts directly to Onyx.

[¶5] Onyx offered customers the option to make payments on their contracts by phone or internet. For customers choosing to make payments in one of those ways, Onyx charged a fee of $9.50 per phone payment and $5.00 per internet payment. The fees were not mentioned in the credit sales contracts nor were they otherwise disclosed to customers at the time the dealer extended credit. Customers who chose to pay Onyx by phone or internet incurred the fees after credit had been extended and after the automobile dealer had assigned the contract to Onyx. The customers had the option not to pay by phone or internet and not to incur the fee by making their payments by regular mail or another expedited method such as Federal Express or Western Union.

[¶6] On May 2, 2005, the Division began an examination to determine whether Onyx was in compliance with the WUCCC and the Administrator's rules and regulations. The Division reviewed a random sample of consumer credit contracts for all of Onyx's consumer credit programs then available. It concluded Onyx had violated the Code by improperly charging fees for payment by phone or internet on some of the consumer credit sales contracts it had purchased. The Division issued a report containing its findings. Onyx subsequently eliminated the internet payment fee but continued to offer customers the option of paying by internet.

[¶7] In August of 2006, the Division sent out a notice of intent to issue an order requiring Onyx to cease and desist from charging the payment fees to its customers. In September of 2006, Onyx appealed from the notice of intent. The OAH issued a briefing schedule and set the matter for argument. The Division filed its motion for summary judgment and supporting brief, arguing that the fees Onyx charged for payment by phone and internet had not been contracted for or disclosed to its customers as required by the WUCCC; therefore, they were in violation of the Code. Onyx responded and filed a cross motion for summary judgment, contending the fees did not violate the WUCCC. Onyx attached to its motion the affidavit of its corporate operations manager stating that Onyx's policy was to assure that customers who opted to pay by phone or internet were fully aware of the amount of the applicable fee before the payment transaction was initiated; if a customer did not want to pay the fee, it was company policy not to go forward with the payment transaction.

[¶8] After a hearing, the OAH concluded the fees violated the WUCCC and issued a recommended order granting summary judgment for the Division. The Administrator issued an order consistent with the OAH's recommendation. Onyx sought review in the district court which, after considering the parties' positions, concluded the fees were not covered by the WUCCC because they were voluntarily incurred by customers well after credit had been extended. The district court entered an order reversing the OAH and the Administrator appealed to this Court. We uphold the reversal of the Administrator's order.


[¶9] We review an appeal from a district court's review of an administrative agency's decision as if it had come directly from the administrative agency. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Our review of an administrative agency's action is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2011), which provides that the reviewing court shall:

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶10] The OAH resolved this dispute by granting summary judgment in favor of the Division. Rule 56 of the Wyoming Rules of Civil Procedure governing summary judgments applies to administrative cases. Rollins v. Wyo. Tribune-Eagle, 2007 WY 28, ¶ 6, 152 P.3d 367, 369 (Wyo. 2007). W.R.C.P. 56(c) provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

We review summary judgment rulings de novo, using the same materials and following the same standards as the OAH. The parties have stipulated to the facts in this case; therefore, we review de novo the OAH's conclusions of law.


[¶11] We begin with an overview of the WUCCC, a legislative enactment that has not received extensive consideration by this Court. The Code was the result of an effort on both the federal and state level to promote the informed and fair use of credit by requiring meaningful disclosure of credit terms so that consumers would have an understanding of the cost of credit. In 1968, Congress enacted the Consumer Credit Protection Act, 15 U.S.C. §§ 1601 et seq. Title I of that Act contains the Federal Truth in Lending Act (TILA) the stated purpose of which is to promote the informed use of credit.

[¶12] That same year, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Consumer Credit Code (UCCC) with the intent of replacing existing consumer credit laws with "a single new comprehensive law providing a modern, theoretically and pragmatically consistent structure of legal regulation designed to provide an adequate volume of credit at reasonable cost under conditions fair to both consumers and creditors." Uniform Laws Annotated, Vol. 7 Part III 88 (2002). In 1971, Wyoming became one of several states to enact the 1968 version of the UCCC. Id. at 89.

[¶13] The UCCC as adopted in Wyoming contains seven articles. Article 2 applies to consumer credit sales.*fn1 Section 40-14-202. The term "consumer credit sale" is defined as "a sale of goods, services, or an interest in land in which:

(i) Credit is granted by a person who regularly engages as a seller in credit transactions of the same kind;

(ii) The buyer is a person other than an organization; (iii) The goods, services or interest in land are purchased primarily for a personal, family or household purpose;

(iv) Either the debt is payable in installments or a credit service charge is made; and

(v) With respect to a sale of goods or services, the amount financed does not exceed fifty thousand dollars ($50,000.00) or the debt is secured by a dwelling, as defined in W.S. 40-14-640(a)(iv), located in Wyoming."

Section 40-14-204(a). Pursuant to this provision, transactions such as occurred here between automobile dealers and their customers are consumer credit sales, i.e. the dealers regularly engage as sellers in granting credit to customers who purchase automobiles for personal or family use with the debts payable in installments or imposition of a credit service charge.

[¶14] Section 40-14-207 provides that the term "seller" as used in the WUCCC includes "an assignee of the seller's right to payment;" however, "use of the term does not in itself impose on an assignee any obligation of the seller with respect to events occurring before the assignment." There is no question that Onyx, as the assignee of the dealers' rights to payment under the consumer credit sales contracts, is a seller within the meaning of the WUCCC; however, use of the term does not impose on Onyx any of the automobile dealers' obligations with respect to events occurring before the assignment.

[¶15] Section 40-14-212(a) provides that a seller involved in a consumer credit sale may contract for and receive a "credit service charge" as provided in subsection (b). Subsection (b) provides generally that the credit service charge may not exceed either 21% or 36% per year depending upon the amount financed. The term "credit service charge" is defined in § 40-14-209(a) in relevant part as the sum of:

(i) All charges payable directly or indirectly by the buyer and imposed directly or indirectly by the seller as an incident to the extension of credit, including any of the following types of charges which are applicable: time price differential, service, carrying or other charge however denominated, premium or other charge for any guarantee or insurance protecting the seller against the buyer's default or other credit loss[.]

Pursuant to ยง 40-14-209(b), the term "credit service charge" ...

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