John Dykstra, and Consolidated ) v. ) on Appeal From the ) United States District Wayland Ford, Inc., ) Court for the…

*The Honorable William C. O’Kelley, United States District Judge for the Northern District of Georgia, sitting
by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0511n.06
Filed: June 15, 2005
Case Nos. 03-1800, 03-1929
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 03-1800 )
JOHN DYKSTRA, and Consolidated )
Plaintiffs, )
)
Plaintiff - Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
WAYLAND FORD, INC., ) COURT FOR THE WESTERN
a Michigan Corporation, ) DISTRICT OF MICHIGAN
)
Defendant - Appellant, )
)
No. 03-1929 )
CHRISTINE DAENZER, on behalf of )
herself and all others similarly situated, )
)
Plaintiff - Appellee, )
)
v. )
)
WAYLAND FORD, INC., )
a Michigan Corporation, )
)
Defendant - Appellant. )
)
___________________________________________
BEFORE: BATCHELDER and DAUGHTREY, Circuit Judges; O’KELLEY,* District Judge.

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2
ALICE M. BATCHELDER, Circuit Judge. This is a consolidated appeal involving two
cases, which presents issues arising under the federal Truth In Lending Act (“TILA”), 15 U.S.C. §§
1638, 1640, and the Michigan Motor Vehicle Installment Sales Contract Act (“MVISCA”), M.C.L.
§ 566.302. In Daenzer v. Wayland Ford, Inc., Defendant-Appellant Wayland Ford, Inc.
(“Wayland”) appeals the district court’s rulings granting Plaintiff-Appellee Christine Daenzer
(“Daenzer”) summary judgment on her claim for statutory damages under § 1638(b) and § 1640(a)
of TILA, summary judgment on the plaintiff class’s claim for damages under § 566.302 of
MVISCA, and an award of attorney fees and costs under § 1640(a)(3) of TILA. Wayland also asks
that if we find in its favor in Daenzer, we apply that judgment as res judicata against the other
consolidated plaintiffs in the companion case, Dykstra v. Wayland Ford, Inc. Because our decision
in Baker v. Sunny Chevrolet, Inc., 349 F.3d 862 (6th Cir. 2003), decided after the district court
entered final judgment in these cases, held that a violation of § 1638(b) alone does not warrant
statutory damages under § 1640(a), we reverse the district court’s award of statutory damages to
Daenzer. Because the absence of statutory damages removes the basis for an award of attorney fees
and costs under § 1640(a), we reverse the district court’s award of those items. Because the district
court applied its erroneous rulings on statutory damages and attorney fees/costs to the Dykstra
plaintiffs as res judicata, we reverse those decisions as well. Finally, because the district court
misinterpreted the relevant provision of MVISCA, and because under the proper interpretation of
that provision plaintiffs are left without a MVISCA claim, we reverse the district court’s judgment
granting MVISCA damages to Daenzer and the plaintiff class.
BACKGROUND

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3
On January 31, 2001, Daenzer entered into a purchase agreement to buy a vehicle from
Wayland. Daenzer signed the necessary documents, including a retail installment sales contract
(“RISC”), and took possession of the vehicle that day. It is undisputed that the RISC contained all
the disclosures mandated by the federal TILA and state MVISCA. It is also undisputed that Daenzer
did not receive her own copy of her RISC on the day she signed it. Wayland disputes this fact with
respect to the Dykstra plaintiffs, however. Daenzer claims that she never received a copy of this
RISC, but her deposition testimony indicates that she did ultimately receive a copy. Daenzer claims
that on February 8, 2001, she returned to the dealership to execute a second RISC with different
terms, ostensibly because Wayland had been unable to sell the first one to a finance company.
Daenzer also claims that Wayland failed to provide her with a copy of this alleged second RISC.
Wayland responds by pleading lack of information with respect to Daenzer, but that its policy was
to provide a copy of the RISC to the buyer upon execution in accordance with state and federal law,
an assertion supported by deposition testimony from several Wayland employees.
On February 27, 2001, Daenzer filed a class action complaint on behalf of herself and others
similarly situated, alleging violations under TILA, MVISCA, and various other theories under
Michigan state law. Wayland moved for judgment on the pleadings, and before the district court
ruled on that motion, submitted two motions for summary judgment. Wayland argued, among other
things, that Daenzer’s TILA claim should be dismissed because statutory damages are unavailable
under § 1638(b) of TILA (and Daenzer was not claiming any actual damages), and that Daenzer’s
MVISCA claim should be dismissed because Wayland met the statute’s standard of substantial
compliance. Daenzer filed her own summary judgment motion on her TILA and MVISCA claims.

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1The district court also upheld Daenzer’s claim under the Michigan Consumer Protection Act (“MCPA”). The
MCPA claim is not an issue on appeal, however, so we make no further reference to it in this opinion.
4
In the meantime, Daenzer succeeded in having two classes certified: one for her TILA
claims (the “TILA Class”), and one for her state law claims (the “State-Law Class”).
On March 15, 2002, the district court granted in part and denied in part Wayland’s motion
for judgment on the pleadings. The court upheld Daenzer’s TILA and MVISCA claims, but
dismissed her other state law claims.1 Regarding the TILA claim, the court interpreted § 1640(a)
as providing for statutory damages for a violation of § 1638(b), even though Wayland argued that
§ 1640(a) only provided for statutory damages under certain enumerated subsections and that §
1638(b) was not one of them. The district court also interpreted the “substantially comply” language
of MVISCA § 566.302 in a manner that was unfavorable to Wayland.
On May 7, 2002, the district court denied Wayland’s motions for summary judgment and
granted summary judgment in favor of Daenzer as to liability on the remaining TILA and MVISCA
claims, leaving the damages issue to a future proceeding. This opinion did little in the way of
application of law to undisputed fact. It relied heavily upon the law explicated in the court’s
previous 12(b)(6) opinion and seems to have taken all the facts alleged by Daenzer as true, even
though Wayland repeatedly disputed some of the important ones, such as whether it provided RISC
copies to the other TILA Class plaintiffs.
On May 22, 2002, Daenzer moved for summary judgment on the issue of damages. She
conceded on the TILA claim that she was not seeking actual damages, and that the TILA Class was
not entitled to statutory damages under § 1640 because it had been discovered that Wayland had a
negative net worth, thus preventing statutory damages under § 1640(a)(2)(B). Therefore, on her
TILA claim Daenzer sought only costs and attorney fees, arguing that her case constituted “a

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2Under § 1640 the defendant’s negative net worth limits only recovery by a class, not an individual plaintiff.
3Twenty-eight members of the former TILA Class filed their own actions for damages. Those actions were
consolidated into the Dykstra case that is also before us on appeal.
5
successful action to enforce [TILA] liability” in accordance with § 1640(a)(3). In her revised
motion for summary judgment on damages, Daenzer explicitly admitted that any recovery was based
on Wayland’s failure to provide a copy of the RISC prior to consummation of the transaction. On
behalf of the State-Law Class, Daenzer sought money damages under MVISCA.
In response to Daenzer’s motion the district court announced, sua sponte, that it would
consider decertifying the TILA Class so the members could pursue individual statutory damages.2
After allowing briefing on the issue, the court entered an order decertifying the TILA Class only as
to the issue of damages and granting Daenzer’s summary judgment motion as to damages, awarding
her costs and attorney fees under § 1640(a)(3). The court further held that its previous liability
decision is res judicata in any damages actions filed by individual class members, and that under
MVISCA, Daenzer and the State-Law Class were entitled to recover the finance charges paid or
owed under the relevant contracts.
With the TILA Class decertified, only Daenzer’s individual TILA claim remained before the
court,3 along with the MVISCA class action for which she remained the named plaintiff. Daenzer’s
TILA statutory damages and the State-Law Class’s MVISCA damages were determined according
to the relevant statute by the simple act of identifying the amount of finance charges associated with
each transaction. The court later issued an order setting forth the specific awards of costs and
attorney fees, including attorney fees under TILA pursuant to the lodestar analysis and under
MVISCA as a percentage of the common fund of recovered damages.

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4One of these cases, Holts v. Wayland Ford, Inc., No. 1:02-CV-863, was dismissed with prejudice by the
parties’ stipulation.
6
After the district court decertified the TILA Class so that its members could seek individual
statutory damages, twenty-eight plaintiffs (the “Dykstra plaintiffs”) filed their own actions against
Wayland, noting that the decertification “did not affect the earlier liability determination which is
res judicata on any further proceeding between these parties.” The Dykstra plaintiffs eventually
obtained judgment in their favor in all but one of the cases.4 The district court also awarded the
Dykstra plaintiffs costs and attorney fees pursuant to TILA § 1640(a)(3).
The district court executed a Final Judgment dated June 19, 2003, from which Wayland
timely appealed.
ANALYSIS
I. Standard of Review
We review de novo a district court’s ruling on a motion for summary judgment. Terry Barr
Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996). We also review mixed
questions of law and fact de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).
Finally, we apply de novo review to issues of statutory construction as well. Jordan v. Michigan
Conference of Teamsters Welfare Fund, 207 F.3d 854, 858 (6th Cir. 2000).
II. TILA Statutory Damages
The district court granted summary judgment in Daenzer’s favor on her TILA claim, holding
that she had established a violation of § 1638(b)’s form and timing requirements, which entitled her
to statutory damages under § 1640(a). Five months after final judgment in the district court, we
issued our decision in Baker v. Sunny Chevrolet, Inc., 349 F.3d 862 (6th Cir. 2003), which held that
a violation of § 1638(b) alone does not warrant statutory damages under § 1640(a). Id. at 871.

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5Daenzer’s only claim that Wayland had violated § 1638(a) was through a “backdoor theory,” which basically
contended that any violation of § 1638(b) automatically constitutes a violation of § 1638(a) as well. The Baker court
explicitly rejected this argument.
7
Wayland argues that we should apply Baker to overturn the district court’s decision in Daenzer. We
agree.
Under the TILA statutory regime, § 1638(a) specifies the substantive requirements of
creditors’ disclosures, § 1638(b) specifies the form and timing of such disclosures, and § 1640(a)
creates a cause of action for certain violations of TILA. Section 1640(a) sets out the various damages
remedies, and then states the following:
In connection with the disclosures referred to in section 1638 of this title, a creditor
shall have a liability determined [regarding individual statutory damages] only for
failing to comply with the requirements of section 1635 of this title or of paragraph
(2) (insofar as it requires a disclosure of the “amount financed”), (3), (4), (5), (6), or
(9) of section 1638(a) of this title.
15 U.S.C. § 1640(a). Baker held that this language does not provide a statutory damages remedy
for a violation of § 1638(b).
Baker clearly requires that we reverse the district court’s decision awarding summary
judgment to Daenzer, which is based solely on its finding that Wayland violated § 1638(b)’s form
and timing of disclosure requirements by failing to give Daenzer a copy of her RISC at signing. In
light of Baker, Daenzer now tries to argue that the district court found a violation of § 1638(a) as
well as § 1638(b). This argument is clearly meritless. Even in the district court, Daenzer never
argued that Wayland had directly violated § 1638(a),5 and the district court’s written opinions clearly
indicate that the liability ruling for Daenzer was based entirely on a § 1638(b) violation meriting
statutory damages under § 1640(a). Since the basis for that ruling is now clearly erroneous in light

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8
of Baker, we must reverse the district court’s decision granting summary judgment to Daenzer on
the issue of TILA statutory damages.
III. TILA Attorney Fees and Costs
The district court awarded Daenzer attorney fees and costs under TILA § 1640(a)(3) because
it determined that she had maintained a “successful action to enforce the foregoing [TILA] liability.”
For purposes of determining the right to attorney fees and costs, the relevant portions of § 1640(a)
state as follows:
(a) Except as otherwise provided in this section, any creditor who fails to comply
with any requirement imposed under this part . . . is liable to such person in an
amount equal to the sum of–
(1) any actual damage sustained . . . ;
(2) [statutory damages]; and
(3) in the case of any successful action to enforce the foregoing liability or
in any action in which a person is determined to have a right of rescission
under section 1635 of this title, the costs of the action, together with a
reasonable attorney’s fee as determined by the court.
§ 1640(a) (emphasis added). Wayland argues that “the forgoing liability” refers only to actual and
statutory damages under § 1640(a)(1) and (2), and that since Daenzer is not entitled to damages
under either of those provisions, she is also not entitled to an award of attorney fees and costs.
Daenzer argues for a broad interpretation of the word “liability” in § 1640(a)(3) that would
encompass any judgment declaring a violation of TILA, regardless of whether that violation
warranted actual or statutory damages. Daenzer reasons that under such a broad reading, she is
entitled to her award of costs and attorney fees because she has obtained a judgment that Wayland
violated § 1638(b).

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Although we are concerned about the lack of incentives to enforce TILA violations that are
not subject to actual or statutory damages, we are convinced that § 1640(a)(3) provides for attorney
fees and costs in only three instances: when actual damages are established under § 1640(a)(1);
when statutory damages are established under § 1640(a)(2); and when a § 1635 right of rescission
operates under § 1640(a)(3). Daenzer’s argument that “liability” refers to the entire TILA is simply
not supported by the statute’s language and structure. Section 1640 is titled “Civil liability,” thereby
strongly implying that use of the term “liability” therein applies within the parameters of § 1640
rather than to the entire TILA statute (including all the provisions not referring to liability). In that
context, use of the phrase “the foregoing liability” in § 1640(a)(3) seems naturally to refer to the
actual and statutory damages set forth in § 1640(a)(1) and (2) rather than every preceding provision
of the entire TILA statute. Finally, Daenzer’s suggested construction would render superfluous the
portion of § 1640(a)(3) specifically providing costs and attorney fees for establishing a right to
rescission under § 1635. See Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762, 769
(6th Cir. 2005) (“Courts are to make every effort to interpret provisions so that other provisions in
the statute are not rendered inconsistent, superfluous, or meaningless.”). For these reasons, the §
1638(b) violation established by Daenzer does not fall within the reach of § 1640(a)(3), and we
reverse the district court’s decision awarding her costs and attorney fees under TILA.
IV. Res Judicata Application to Dykstra Plaintiffs
Once the TILA Class was decertified, twenty-eight plaintiffs filed actions pursuing
individual TILA statutory damages against Wayland. These actions were consolidated into the
Dykstra case. After the district court made its TILA rulings regarding statutory damages and
attorney fees/costs in Daezner, it applied these rulings as res judicata to the Dykstra plaintiffs.

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Because the district court’s rulings in Daenzer regarding statutory damages and attorney fees/costs
are erroneous, Wayland argues, we must not only reverse them, but apply our holdings as res
judicata to the Dykstra plaintiffs. We agree.
In Erbia v. Chrysler Plastics Prods. Corp., 891 F.2d 1212, 1215 (6th Cir. 1989), we stated
with regard to res judicata:
When a judgment has been subjected to appellate review, the appellate court’s
disposition of the judgment generally provides the key to its continued force as
res judicata and collateral estoppel. A judgment that has been vacated, reversed,
or set aside on appeal is thereby deprived of all conclusive effect, both as res
judicata and as collateral estoppel.
Our reversal of the district court’s rulings granting statutory damages and attorney fees/costs to
Daenzer under TILA deprives the district court’s judgment of its conclusive effect. Therefore, we
reverse the res judicata application of the district court’s erroneous rulings on statutory damages and
attorney fees/costs to the Dykstra plaintiffs.
V. MVISCA Claim
The district court interpreted the “substantially comply” language of MVISCA § 566.302
in a manner favorable to Daenzer, and it granted summary judgment to Daenzer and the State-Law
Class on the MVISCA claim. Wayland argues on appeal that the district court erroneously
interpreted the “substantially comply” language, and that under a proper interpretation Daenzer and
the State-Law Class have no valid MVISCA claim. We agree.
MVISCA § 566.302 establishes substantive disclosure requirements for credit transactions
similar to those in the TILA. Like the TILA, the first paragraph of § 566.302 requires that the
“written instrument [evidencing the credit transaction] shall contain” several specific disclosures.
It also requires that a copy of the written instrument “shall be delivered to [the retail buyer] by the

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retail seller at the time of its execution.” The primary focus of this appeal is the fourth paragraph
of § 566.302–the remedy portion of the statute–which states the following:
Under a written instrument evidencing a retail installment sale which does not
substantially comply with the requirements of this section, the seller shall not be
entitled to recover, collect or retain that part of the obligation which represents the
finance charge and the buyer shall not be liable therefor.
The district court held, and Daenzer argues in this appeal, that the phrase “substantially
comply” modifies “retail installment sale,” and that a retail installment sale in which Daenzer did
not receive a copy of her RISC at the time of signing–a fact admitted by Wayland–did not
substantially comply with the requirements of § 566.302.
Wayland argues, on the other hand, that “substantially comply” modifies the broader phrase
“written instrument evidencing a retail installment sale,” so that the focus of the remedy provision
would be upon the substantive disclosures in the RISC (the “written instrument”) rather than the
entire “retail installment sale,” which would arguably include the timing of the disclosure. A focus
on the content of the written instrument would benefit Wayland because Daenzer does not argue that
her RISC was incomplete.
No Michigan state appellate court has interpreted this provision, which leaves to us the task
of doing so in the first instance.
We agree with Wayland that the district court erred when it interpreted “substantially
comply” as modifying the entire “retail installment sale” rather than the narrower “written
instrument evidencing a retail installment sale.” The remedy provision of § 566.302 requires the
“written instrument evidencing a retail installment sale” to “substantially comply with the
requirements of this section.” (emphasis added). “This section” is 566.302, which deals with the
written instrument (the RISC) specifically, not the broader retail installment sale. This fact is clear

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not only from the content of § 566.302, but from its title, which reads, “Contract, contents; delivery
of copy of contract and insurance policy to buyer.” Given the language and structure of § 566.302,
it is the “written instrument evidencing a retail installment sale” that must “substantially comply”
with the requirements of § 566.302, not the broader “retail installment sale.”
Since Daenzer’s MVISCA claim is based entirely on the delivery of her RISC–she does not
claim that its substantive contents were deficient–our interpreting “substantially comply” to apply
to the contents of the “written instrument,” rather than the broader “retail installment sale” process,
leaves her and the State-Law Class without a claim under MVISCA. Therefore, we reverse the
district court’s grant of summary judgment to Daenzer and the State-Law Class on the MVISCA
claim, and we grant summary judgment to Wayland on that claim.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s summary judgment orders
granting plaintiffs statutory damages and attorney fees/costs under TILA and damages under
MVISCA, and we GRANT summary judgment to Wayland on plaintiffs’ TILA and MVISCA
claims.

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