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DECEMBER 14, 1983





This case began as a simple action to collect a $268.60 debt. As it has reached this Court, the case presents us with our first opportunity to consider the office of the motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure. Also involved is a narrow question under the Federal Truth In Lending Act.

 We hold that the Circuit Judge correctly entered summary judgment in favor of the creditor on the claim on the underlying debt. The Circuit Judge erred, however, in granting summary judgment on the debtor's set-off raised under the Truth In Lending Act. We remand for trial on that issue.



 On February 22, 1978, Carolyn L. Brown, Defendant below and Appellant here, obtained from Credit Center, Inc., Plaintiff below and Appellee here, a consumer loan in the principal amount of $595.50. The loan together with finance charges was to be repaid in 18 monthly installments of $46.00 each. Incident to the closing of this consumer credit transaction, Credit Center delivered to Brown a Disclosure Statement in accordance with the Truth In Lending Act.

 In connection with the loan, Brown elected to purchase credit life and disability insurance through Credit Center. The purpose of this insurance, of course, was to

 provide a means of paying the indebtedness in the event of Brown's death or disability during the term of the loan. The premiums are set out in the Disclosure Statement. That statement explains that Brown's credit insurance coverage lasts "for the term of the credit" .

 At the same time, Brown signed a separate document which was a credit insurance policy application form. The application reflects that it is in connection with an 18 payment loan. It indicates a termination date for the insurance coverage as "4-5-79" , five months before the last payment on the loan was due. Brown's final loan payment was due on September 5, 1979.

 By the time September 5, 1979, arrived, Brown's payments were substantially in arrears. As of December 1, 1979, $268.60 was still outstanding. That amount has not been paid [until this date].


 On December 11, 1979, Credit Center commenced an action in the Justice Court of District 5, Rankin County, Mississippi. Carolyn L. Brown was named as Defendant. Credit Center demanded judgment in the amount of $268.60 plus costs. On December 18, 1979, the Justice Court entered the demanded judgment.

 Brown appealed to the Circuit Court of Rankin County, Mississippi, claiming her right to trial de novo. Credit Center filed a declaration reasserting its claim on the underlying debt. In due course Brown filed an answer admitting the loan but denying that she owed anything to Credit Center. Brown asserted a series of affirmative matters, the essence of which was that Credit Center had committed various Truth In Lending disclosure violations, as a result of which she was entitled to recover twice the finance charge ($203.43 x 2 = $406.86) as a set-off.

 On June 30, 1982, Credit Center filed its motion for summary judgment, still claiming only that the underlying debt of $268.60 ought be paid. Various documents and affidavits were attached to the motion in accordance with Rule 56, Miss. R. Civ. P.

 On July 30, 1982, Brown filed a cross motion for summary judgment. She again denied the claim for the unpaid balance of the loan and reasserted that Credit Center had violated the Truth In Lending Act by failure to make accurate disclosure of the cost of the credit

 insurance. She claimed her set-off and urged that it be granted summarily in accordance with Rule 56.

 After consideration of the motions, briefs and affidavits furnished by the parties, the Circuit Court granted Credit Center's motion for summary judgment and dismissed Brown's cross motion. Final judgment was entered for Credit Center against Brown on September 13, 1982, in the amount of $268.60, plus attorney's fees in the amount of $53.72, for a total amount of $332.32, plus costs and interest from date of the judgment.

 From this judgment, Brown prosecutes this appeal.



 We are called upon for the first time to construe our summary judgment procedure provided in Rule 56 of the Mississippi Rules of Civil Procedure. Rule 56 is enforceable in this action by virtue of the consent of the parties.

 The Mississippi Rules of Civil Procedure govern all civil actions commenced after January 1, 1982. This action originated when Credit Center filed in Justice Court on December 11, 1979. Credit Center filed its declaration in the Circuit Court on February 12, 1980. For reasons neither clear nor important, the case was still on the docket when 1982 arrived. On June 30, 1982, Credit Center filed its motion for summary judgment. Brown in no way objected that, because the case pre-dated January 1, 1982, Rule 56 did not apply. Instead Brown herself invoked Rule 56 by filing her cross-motion for summary judgment on July 30, 1982.

 At no point in the proceedings in the Circuit Court did either party urge that the summary judgment procedure was unavailable because this action was commenced prior to the effective date of the Mississippi Rules of Civil Procedure. Neither party has assigned the point as error on this appeal. Each party has effectively waived any objection it may have had to the Circuit Court's utilization of Rule 56 in the determination of this action.


 The heart of our summary judgment procedure is found in Rule 56 (c), Miss. R. Civ. P., which provides as follows:

 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 judgment as a matter of law.

 We need keep clearly in mind what is intended by this rule. The Advisory Committee which assisted in the drafting of our civil rules offers in its Comment several helpful views:

 The motion for a summary judgment challenges the very existence of legal sufficiency of the claim or defense to which it is addressed; in effect, the moving party takes the position that he is entitled to prevail as a matter of law because his opponent has no valid claim for relief or defense to the action, as the case may be.

 Rule 56 provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried. The rule should operate to prevent the system of extremely simple pleadings from shielding claimants without real claims or defendants without real defenses. . . .

 A motion for summary judgment lies only where there is no genuine issue of material fact; summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only ...

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