                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                   FILED
                     ________________________         U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                            March 24, 2008
                            No. 07-13281
                                                         THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                D. C. Docket No. 96-00447-CV-J-32-HTS

CARLA C. HIGGINBOTHAM, et al.,



                                               Plaintiff-Counter-Defendants,

EVEREAN MITCHELL,

                                                         Plaintiff-Appellant,

                                 versus

FORD MOTOR CREDIT COMPANY,


                                      Defendant-Counter-Claimant-Appellee.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                           (March 24, 2008)
Before BIRCH, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

       Everean Mitchell (“Mitchell”) appeals the district court’s grant of summary

judgment against her claim under the Consumer Leasing Act (“CLA”), 15 U.S.C.

§1667 et seq. The district court held that Mitchell lacked standing because she

had not suffered an injury in fact. We reverse and remand.

                                      I. BACKGROUND

       On May 21, 1996, Mitchell entered into a closed-end lease agreement1 with

Appellee Ford Motor Credit Company (“Ford”) for a 1996 Ford Taurus. Under

the lease, Mitchell was obligated to pay twenty-four monthly payments. After

making twenty-one monthly payments, Mitchell returned the Taurus to the dealer

and terminated her lease approximately three months early. Thereafter, Ford

assessed damages of $4,772.16 against Mitchell, which Ford computed by using


       1
           The Third Circuit provided the following apt description of a “closed-end lease”:

    A closed-end lease is a lease in which the lessee is not responsible for the difference if
    the actual value of the vehicle at the scheduled end of the lease is less than the residual
    value, but the lessee may be responsible for excess wear and excess mileage charges
    and for other lease requirements. In contrast, an open-end lease is one in which the
    lessee’s liability at the end of the lease term is based on the difference between the
    residual value and its realized value. The residual value of a vehicle is the projected
    value of the vehicle at the end of the lease that is assigned at the beginning of the lease.

Miller v. Nissan Motor Acceptance Corp., 362 F.3d 209, 212 n.2 (3d Cir. 2004) (internal
citations and quotation marks omitted).

                                                  2
the early termination formula in the lease agreement. On October 14, 1998, Ford

filed suit against Mitchell in Georgia state court seeking to collect the early

termination charge. Mitchell retained counsel to defend herself and

counterclaimed against Ford, alleging that Ford’s early termination charge was

unreasonable pursuant to the CLA, 15 U.S.C. § 1667b(b).

       On July 30, 1999, Ford amended its complaint to seek a lesser amount of

damages: $1,356.21. This amount included the three unpaid lease payments,

excess mileage charges, and tax on the excess mileage charges, but did not include

the early termination charge.2

       On August 20, 1999, Mitchell, along with two other plaintiffs, joined Carla

C. Higginbotham in filing the First Amended Complaint in this action. Like

Mitchell’s state court counterclaim, the First Amended Complaint sought, inter

alia, statutory and actual damages under the CLA for Ford’s unreasonable early

termination charge. Ford counterclaimed for the $1,356.21. Ford and Mitchell

subsequently entered into a tolling agreement that tolled the parties’ claims in the

Georgia state court action during the pendency of the instant action.



       2
         Ford asserts that it amended the complaint because during the discovery process, it was
revealed that Mitchell and Ford had previously agreed to an amount of $1,356.21 owed under the
lease agreement. Mitchell disputes that she entered into such an agreement. (See Mitchell’s
Reply Brief at 2.)

                                               3
      On August 24, 2004, the district court granted summary judgment against

Mitchell due to Mitchell’s lack of standing. The court held that Mitchell suffered

no injury because Ford was no longer pursuing the early termination charge.

                                II. DISCUSSION

      The question presented here is whether Mitchell sustained an injury under

the CLA when Ford assessed the allegedly unreasonable early termination charge

and instituted litigation against Mitchell to collect the charge. We review de novo

determinations of standing. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975

(11th Cir. 2005).

      The Constitution of the United States limits the subject matter jurisdiction

of federal courts to “Cases” and “Controversies.” U.S. Const., art. III, § 2. “[T]he

core component of standing is an essential and unchanging part of the case-or-

controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). A plaintiff bears the

burden of showing “(1) an injury in fact, meaning an injury that is concrete and

particularized, and actual or imminent, (2) a causal connection between the injury

and the causal conduct, and (3) a likelihood that the injury will be redressed by a

favorable decision.” KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299, 1303

(11th Cir. 2007) (internal quotation marks omitted). An “injury in fact” requires

                                          4
the plaintiff to “show that he personally has suffered some actual or threatened

injury.” Valley Forge Christian College v. Americans United for Separation of

Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982)

(internal quotation marks omitted).

      In 1976, Congress passed the CLA as an amendment to the Truth-in-

Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. Section 1667b(b) allows

penalties for early termination to be specified in a lease, but only if such penalties

are “reasonable:”

    (b) Penalties and charges for delinquency, default, or early termination

    Penalties or other charges for delinquency, default, or early termination
    may be specified in the lease but only at an amount which is reasonable in
    the light of the anticipated or actual harm caused by the delinquency,
    default, or early termination, the difficulties of proof of loss, and the
    inconvenience or nonfeasibility of otherwise obtaining an adequate
    remedy.

15 U.S.C. § 1667b(b) (emphasis added).

      CLA plaintiffs suing under § 1667b may seek relief under TILA’s § 1640

damages provisions. See 15 U.S.C. § 1667d(a). Specifically, § 1640(a)(1)

provides for actual damages, and § 1640(a)(2) provides for statutory damages:

    (a) Individual or class action for damages; amount of award; factors
    determining amount of award

    Except as otherwise provided in this section, any creditor who fails to


                                           5
    comply with any requirement imposed under this part, including any
    requirement under section 1635 of this title, or part D or E of this
    subchapter with respect to any person is liable to such person in an amount
    equal to the sum of--

    (1) any actual damage sustained by such person as a result of the failure;

    (2)(A) (i) in the case of an individual action twice the amount of any
    finance charge in connection with the transaction, (ii) in the case of an
    individual action relating to a consumer lease under part E of this
    subchapter, 25 per centum of the total amount of monthly payments under
    the lease, except that the liability under this subparagraph shall not be less
    than $100 nor greater than $1,000, or (iii) in the case of an individual
    action relating to a credit transaction not under an open end credit plan
    that is secured by real property or a dwelling, not less than $200 or greater
    than $2,000; or

    (B) in the case of a class action, such amount as the court may allow,
    except that as to each member of the class no minimum recovery shall be
    applicable, and the total recovery under this subparagraph in any class
    action or series of class actions arising out of the same failure to comply
    by the same creditor shall not be more than the lesser of $500,000 or 1 per
    centum of the net worth of the creditor;

15 U.S.C. § 1640(a)(1)-(2)(B).

We have explained, in the TILA disclosure context, that under § 1640, “statutory

damages provide at least a partial remedy for all material TILA violations;

however, actual damages ensure that consumers who have suffered actual harm

due to a lender’s faulty disclosures can be fully compensated, even if the total

amount of their harm exceeds the statutory ceiling on TILA damages.” Turner v.

Beneficial Corp., 242 F.3d 1023, 1026 (11th Cir. 2001) (en banc). The same

                                          6
reasoning applies here, i.e., statutory damages are available upon a material CLA

violation and actual damages are available to compensate a CLA plaintiff’s actual

harm.

        No relief is available, however, if a creditor takes the necessary steps to

correct its errors. Specifically, the creditor must undertake certain corrective

actions that are: (1) within sixty days after discovering an error; and (2) prior to

the institution of an action:

    (b) Correction of errors

    A creditor or assignee has no liability under this section or section 1607 of
    this title or section 1611 of this title for any failure to comply with any
    requirement imposed under this part or part E of this subchapter, if within
    sixty days after discovering an error, whether pursuant to a final written
    examination report or notice issued under section 1607(e)(1) of this title or
    through the creditor's or assignee's own procedures, and prior to the
    institution of an action under this section or the receipt of written notice of
    the error from the obligor, the creditor or assignee notifies the person
    concerned of the error and makes whatever adjustments in the appropriate
    account are necessary to assure that the person will not be required to pay
    an amount in excess of the charge actually disclosed, or the dollar
    equivalent of the annual percentage rate actually disclosed, whichever is lower.

15 U.S.C.A. § 1640(b).3




        3
         Section 1640 also precludes liability where the creditor can show, by a preponderance of
the evidence, that the noncompliance was a result of an unintentional and “bona fide error.” 15
U.S.C. § 1640(c). Examples of a bona fide error include clerical errors, calculation errors, and
computer malfunctions. Id. Ford has made no claim that § 1640(c) is implicated here.

                                               7
       In this case, it is undisputed that Ford applied an early termination charge to

Mitchell and pursued recovery of that charge by instituting an action in Georgia

state court against Mitchell. If it is shown that Ford’s early termination charge

was, in fact, unreasonable under 15 U.S.C. § 1667b(b), Mitchell suffered an injury

in this case. Once Ford applied the early termination charge to Mitchell and failed

to take the requisite corrective actions under § 1640(b), Mitchell incurred an injury

for which at least statutory damages were recoverable.4

       The Third Circuit’s reasoning in Miller v. Nissan Motor Acceptance Corp.,

362 F.3d 209 (3d Cir. 2004) supports our conclusion that Mitchell sustained an

injury. There, Miller argued he had standing to challenge an allegedly

unreasonable early termination provision in his automobile lease. Id. at 220.

Nissan countered that there was no injury because it did not apply the early

termination provision in assessing a charge to Miller; instead, Nissan opted to

derive the charge from Miller’s remaining unpaid payments. Id. The Third

Circuit held there was no injury because Nissan never applied the early

termination provision to Miller. Id. at 224, 225. The same conclusion was drawn


       4
         Mitchell also seeks actual damages for the injury she incurred from Ford’s unreasonable
early termination charge. Specifically, she states that she incurred actual harm by Ford reporting
her as delinquent to credit agencies and in having to defend herself in the initial action brought
by Ford. (See Mitchell’s Initial Brief at 14.) We do not reach whether Mitchell’s claim for
actual damages are sustainable as the district court has not had an opportunity to address them.

                                                8
in Kedziora v. Citicorp Nat’l Servs., 780 F. Supp. 516, 523 (N.D. Ill. 1995) (“[A]

plaintiff bringing a claim under Section 1667b(b) has no standing to litigate the

reasonableness of a lease provision that caused him or her no actual injury because

it never became applicable to him or her.” (emphasis added)).

      The crux of the standing analysis in both Miller and Kedziora turned on

whether the defendant lessor actually applied the early termination provision to the

plaintiff lessee. Because the defendant lessor never applied an early termination

charge in either case, the plaintiff lessee failed to sustain an injury in fact. In stark

contrast, Ford applied the early termination charge to Mitchell and instituted a

legal action against Mitchell to collect the charge.

      Moreover, Ford’s subsequent decision to not pursue the early termination

charge did not eviscerate the injury that Mitchell had already incurred, just as it

did not moot this case. Mitchell’s claims for monetary damages are retrospective

in nature. “[A] claim for monetary damages looks back in time and is intended to

redress a past injury.” Smith v. Allen, 502 F.3d 1255, 1267 n.6 (11th Cir. 2007)

(internal quotation marks omitted); Adler v. Duval County Sch. Bd., 112 F.3d

1475, 1477 (11th Cir. 1997) (same); see also Herron v. Beck, 693 F.2d 125, 127

n.3 (11th Cir. 1982) (holding that transfer of a prisoner to a different facility

mooted some or all of his claims for equitable relief against practices at the

                                            9
original prison, but did not moot his claim for damages); 13A Charles A. Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure:

Jurisdiction 2d § 3533.3 (2007) (“Claims for damages or other monetary relief

automatically avoid mootness, so long as the claim remains viable.”). Thus,

Mitchell’s claim for damages function to preclude mootness, even if the district

court ultimately concludes that Ford’s decision to not pursue an early termination

charge renders her claims for equitable relief moot.5

                                    III. CONCLUSION

       For the foregoing reasons, we reverse and remand for further proceedings.

REVERSED AND REMANDED.




       5
         We do not reach whether Mitchell’s claims for equitable relief are moot as the district
court has not had an opportunity to address the question.

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