Ivory Dorsey v. Citizens & Southern Financial Corporation , 706 F.2d 1203 ( 1983 )

706 F.2d 1203

Ivory DORSEY, Plaintiff-Appellant,
v.
CITIZENS & SOUTHERN FINANCIAL CORPORATION, Defendant-Appellee.

No. 81-7681

United States Court of Appeals,
Eleventh Circuit.

June 10, 1983.

Bowen, Derrickson, Goldberg & West, Ralph Goldberg, Atlanta, Ga., for plaintiff-appellant.

Howard & Gilliland, Thomas Gilliland, Robin K. Warren, Decatur, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and HATCHETT, Circuit Judges.*

PER CURIAM:

1

This is an appeal from a summary judgment for defendant, Citizens & Southern Financial Corporation (Citizens), in a case presenting claims under the Equal Credit Opportunity Act, 15 U.S.C. Sec. 1691(d) and the Truth in Lending Act, 15 U.S.C. Sec. 1639 (repealed 1980, effective Oct. 1, 1982). On June 7, 1982 the original panel opinion, Dorsey v. Citizens & Southern Financial Corp., 678 F.2d 137 (11th Cir.1982), affirmed the lower court's holding with respect to the Equal Credit Opportunity Act claim. The panel concluded that the Truth in Lending issue was controlled by the panel decision in Sage v. Freedom Mortgage Company, 675 F.2d 1208, 1211 (11th Cir.1982). On that claim it reversed summary judgment in favor of Citizens and remanded for entry of summary judgment in favor of Dorsey.

2

Citizens' petition for rehearing contained information which made Judge Hill aware for the first time that he is disqualified in this case. Accordingly, Judges Vance and Hatchett acting as a quorum of the court entered an order on September 13, 1982 vacating and withdrawing the panel opinion, 678 F.2d at 140. Because of the intervening vacation of the panel opinion in Sage and its pending consideration by the en banc court, this case has been held under advisement since that time.

3

Sitting en banc the court has now reversed its prior holding in Sage, 704 F.2d 1519 (11th Cir.1983), slip op. 3051, and its opinion dictates that the summary judgment in this case in favor of Citizens be affirmed.1

4

After independent reconsideration of the question, we now reinstate that portion of our original panel opinion affirming the district court's judgment on the Equal Credit Opportunity Act claim. Following the en banc opinion in Sage we now also affirm the district court's judgment on the Truth in Lending claim. The judgment of the district court is, therefore, in all respects

5

AFFIRMED.

*

This opinion is by Judges Vance and Hatchett acting as a quorum of the court. Judge Hill, a member of the original panel to which this case was assigned, did not participate in the consideration or entry of this opinion

1

Judge Hatchett joined Judge Clark's dissent in Sage and adheres to the views therein expressed. However, the majority decision in Sage is binding on this panel