Patricia Ann Dias v. Bank of Hawaii , 764 F.2d 1292 ( 1985 )

PER CURIAM:

On a second appeal to this court, Patricia Dias challenges the order of the Hawaii federal district court, Fong, J., which granted the Bank of Hawaii a stay of execution of her $185 judgment under the Truth in Lending Act. We find that we have jurisdiction to review a stay order to allow a setoff against a possible state judgment. However, we remand to the district court for findings of fact.

FACTS

The facts are set forth in detail in our disposition of Dias’ first appeal from an order declaring the judgment satisfied. Dias v. Bank of Hawaii, 732 F.2d 1401, 1402 (9th Cir.1984). Briefly, after suing the Bank for violations of the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., Dias accepted an offer of judgment for $185 plus attorney fees and costs in December 1982. Instead of paying Dias the $185, however, the Bank credited that amount to Dias’ VISA account, reducing the amount allegedly due to $533.01. The Bank also commenced a debt collection action against Dias in Hawaii state court. Two and a half years later, that action has not yet proceeded to judgment.

The Bank then moved for relief from Dias’ judgment under Fed.R.Civ.P. 60(b)(5), requesting the federal district court to order the judgment satisfied. The district court granted the motion, Dias appealed, and this court reversed. The panel expressly declined to consider whether a stay of execution would be proper, but suggested that the district court consider the issue on remand. 732 F.2d at 1403.

Upon remand, the Bank filed a second motion for relief from judgment, seeking a stay of execution. Fed.R.Civ.P. 60(b). The district court granted the motion, citing but not expressly adopting the Bank’s arguments that 1) a stay would not be unduly burdensome to Dias, since the state court claim “will proceed to trial in the near future,” and that 2) if the Bank prevailed in state court after satisfying the $185 federal judgment, Dias’ poverty “will make execution against the plaintiff difficult.” Dias appeals.

ANALYSIS

A. Standard of Review

We review the district court’s ruling on a Rule 60(b) motion for relief from judgment under the abuse of discretion standard. Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); In re Burley, 738 F.2d 981, 988 (9th Cir. 1984); Plotkin v. Pacific Tel. and Tel. Co., 688 F.2d 1291, 1292 (9th Cir.1982).

B. Appealability under § 1292(a).

We must first decide whether, as Dias contends, we have jurisdiction over her appeal under 28 U.S.C. § 1292(a), which gives us jurisdiction over interlocutory orders of the district courts “granting, continuing, modifying, refusing or dissolving injunctions.” While the Supreme Court has noted that § 1292(a) provides only a narrow exception to the final order rule of 28 U.S.C. § 1291, see Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981), the Court has long recognized an exception in the form of the Enelow-Ettelson rule.

The “Enelow-Ettelson” rule provides that an order staying

“federal court proceedings pending determination of an equitable defense is an injunction appealable under 28 U.S.C. § 1292(a)(1) if the proceeding stayed was an action that could have been maintained as an action at law before the merger of law and equity.” Wren v. Sletten Constr. Co., 654 F.2d 529, 533 n. 2 (9th Cir. 1981).

ATSA of California, Inc. v. Continental Ins. Co., 702 F.2d 172, 174 n. 2 (9th Cir. 1983) (citing Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942)), amended on other grounds, 754 F.2d 1394 (9th Cir.1985); see Alascom, Inc. v. ITT North Electric Co., 727 F.2d 1419, 1421 (9th Cir.1984).

Here, the statutory Truth in Lending action, seeking damages and attorney fees, would have been primarily considered an action at law. See Sweater Bee by Banff, Ltd. v. Manhattan Industries, Inc., 754 F.2d 457, 460 n. 2 (2d Cir.1985) (damages action is considered an action at law for purposes of Enelow-Ettelson rule); Alascom, Inc. v. ITT North Electric Co., 727 F.2d 1419, 1421 (9th Cir.1984). The stay was for the purpose of permitting a possible setoff, which may be characterized as an “equitable defense.” See generally 20 Am.Jur.2d Counterclaim, Recoupment, and Setoff §§ 2, 7 (1965); 80 C.J.S. Set-off and Counterclaim §§ 3, 5 (1953). Moreover, the practical effect of the stay is indistinguishable from the effect of an order at least temporarily enjoining enforcement of the judgment. See Jewell v. Davies, 192 F.2d 670, 673 (6th Cir.1951), cert. denied, 343 U.S. 904, 72 S.Ct. 635, 96 L.Ed. 1323 (1952).

We therefore hold that an order staying execution of a federal TILA judgment under Rule 60(b) to permit a state court to decide a claim that might be set off against the federal judgment is appealable under the Enelow-Ettelson rule as an interlocutory order relating to an injunction.¹ See Kerwit Medical Products, Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 (5th Cir.1980).

C. Findings of Fact

We cannot properly evaluate the merits of the decision to stay execution of the judgment, however, because the district judge failed to make findings of fact to support his decision. Although most rulings on motions do not require findings of fact, such findings are necessary when granting interlocutory injunctions. Fed.R. Civ.P. 52(a). Furthermore, these findings are essential to a proper review of the variety of factors considered in a Rule 60(b) motion for relief from judgment. “The rule contemplates consideration by the trial court of the competing equities, of the strengths and weaknesses of the parties’ positions, and of the imposition of conditions for relief from a judgment. It contemplates that an appeal will come before us with a record reflecting those considerations.” Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 637 (3d Cir.1982) (en banc), cert. denied, — U.S. -, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984). When both the trial court’s determination and our review are particularly dependent on factual considerations, we may remand to the district court for findings of fact. See, e.g., Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1338 (9th Cir.1984) (remand is generally required when trial court makes no findings of fact); Sumner v. San Diego Urban League, Inc., 681 F.2d 1140, 1143 (9th Cir.1982); C. Wright & A. Miller, Federal Practice and Procedure § 2577 at 697 & n. 93 (1971 & 1984 Supp.).

The trial judge on remand should expressly address the public policy considerations that militate in favor of fast and effective execution of Truth in Lending Act judgments, and do any necessary balancing in reaching a decision. See Dias v. Bank of Hawaii, 732 F.2d at 1403 (“allowing lenders to satisfy adverse TILA judgments by reducing their claims in other courts would frustrate the essential purpose of the Act”); Hannon v. Security National Bank, 537 F.2d 327, 328 (9th Cir.1976). In particular, given the trial judge’s heavy reliance in his grant of a stay of execution on Gay v. Haiku Fruit and Packing Co., 29 Hawaii 702 (1927), the trial judge should apply that case’s standard for determining whether a stay is appropriate: “When the party claiming the benefit of a set off cannot avail himself of the right in the trial of the action, the cause may be continued or execution stayed, if justice so requires, until the claimant obtains judgment, which may then be set off against the other.” 29 Hawaii at 710 (emphasis added) (citation omitted). Finally, the trial judge is governed by the equitable elements of both the stay requested and the Rule 60(b) motion, and should look to “the competing equities ... [and] the strengths and weaknesses of the parties’ position.” Halderman v. Pennhurst State School & Hospital, 673 F.2d at 637.

D. Attorneys’ fees.

Our disposition of the appeal entitles Dias to costs and reasonable attorney fees incurred for this appeal. Dias v. Bank of Hawaii, 732 F.2d at 1403; 15 U.S.C. § 1640(a)(3). We will determine the fee award after receiving appropriate documentation.

CONCLUSION

This case is remanded for the district court to enter findings of fact and weigh the applicable factual and policy considerations.

1 . The independent state court action on the debt and the stay of the Truth in Lending judgment would be unnecessary if the District Court for the District of Hawaii permitted counterclaims on the debt. See Fed.R.Civ.P. 13. Such counterclaims have been consistently dismissed. See, e.g., Bantolina v. Aloha Motors, Inc., 419 F.Supp. 1116, 1122 & n. 20 (D.Hawaii 1976); Wise v. Beneficial Finance Co., Civ. No. 75-0215 (D.Hawaii, March 8, 1977); Lien v. First Hawaiian Bank, Civ. No. 75-0384 (D.Hawaii, May 12, 1976). Although the judicial efficiency of this rule is open to question, the issue is not before us.