PAYDAY TODAY INC v. HAMILTON. Court of Appeals of Indiana

V. Or perhaps a test court erred in giving lawyer costs to Hamilton.

FACTS AND PROCEDURAL HISTORY

Payday is really a payday financial institution, and Hall is its lawyer. In July of 2004, Payday loaned $125.00 to Hamilton, a “small loan” as defined by Ind.Code В§ 24-4.5-7-104(a). Underneath the regards to the mortgage contract, Hamilton would be to spend $143.75, like the $125.00 principal as well as an $18.75 solution fee, within fourteen days through the date associated with the loan. As safety when it comes to loan, Hamilton offered Payday with a post-dated search for $143.75. Whenever Hamilton’s check had been returned to Payday, Hall mailed her a page demanding the total amount of the check, in conjunction with a $20.00 returned check cost and $300.00 in lawyer charges. The page claimed that payment of those quantities ended up being needed for Hamilton to prevent a lawsuit. Particularly, the page reported in pertinent component:

Re: DISHONORED CHECK TO Payday Today, Inc./South Bend

Please be encouraged that this workplace happens to be retained to represent the above lender with respect to a little loan contract No ․, dated 06/03/2004. This loan provider accepted your check as protection for a financial loan in the quantity of ($143.75). The contract called for the check to be cashed pursuant to your regards to the mortgage contract, in the event that you hadn’t formerly made plans to meet the mortgage. You’ve got neglected to make re re re payment to your loan provider as agreed, and upon presentation, the banking organization on which it had been drawn failed to honor your check. You’ve been formerly notified by the loan provider of the returned check and also taken no action to solve the situation.

SHOULD YOU WANT TO RESOLVE THIS SITUATION WITH OUT A LAWSUIT, this is the time to use it. To do this, you need to spend the next quantities, (1) the complete level of the check plus, (2) a $20 returned check charge, and (3) lawyer costs of $300. This re re re re payment must certanly be in the shape of a cashier’s money or check purchase payable to Attorney Edward R. Hall. In the event that you are not able to spend in complete the quantity due within ten times through the date for this page, we might register suit instantly, where you might be accountable for the after amount under I.C. В§ 24-4.7-5 et seq.; (1) the amount of the check; (2) a twenty buck returned check cost; (3) court expenses; (4) reasonable lawyer costs; (5) all the reasonable expenses of collection; (6) 3 times (3x) the total amount of the verify that the facial skin number of the check had not been higher than $250.00, or (7) in the event that face number of the check had been $250.00 or higher, the check quantity plus five hundred bucks ($500.00), and interest that is pre-judgment the price of 18per cent per annum.

(Appellants’ App. 1 at 13; Appellant’s App. 2 at 17). (Emphasis in initial). Hall’s page further suggests Hamilton that she could possibly be responsible for different damages if she ended up being discovered to own presented her sign in a fraudulent way.

Hamilton filed a issue against Payday and Hall alleging violations for the Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) as well as the federal Fair Debt Collection methods Act (15 U.S.C. § 1692) (“FDCPA”). In Count We associated with the problem, Hamilton alleged that Payday violated the SLA whenever

a. Hall threatened ․ to file case against Hamilton that will demand damages in overabundance what the defendants are allowed to recuperate under I.C. 24-4.5-7-202, thus breaking I.C. 24-4.5-7-410(b), and Payday caused this danger to be produced, thus breaking I.C. 24-4.5-7-410(b).

b. Hall made misleading and misleading statements to Hamilton ․ concerning the quantity the defendants could recover for a tiny loan, therefore breaking I.C. 24-4.5-7-410(c), and Payday caused these statements to be produced, therefore breaking I.C. 24-4.5-7-410(c).

c. Hall represented in their letter that Hamilton, as a debtor of a little loan, is likely for lawyer charges compensated because of the loan provider associated with the number of the tiny loan, thus breaking I.C. 24-4.5-7-410(d), and Payday caused these representations to be produced, thus breaking I.C. 24-4.5-7-410(d).

d. Hall made deceptive and fraudulent representations in their page regarding the quantity a loan provider is eligible to recover for a tiny loan, thus breaking I.C. 24-4.5-7-410(g), and Payday caused these representations to be produced, thus breaking I.C. 24-4.5-7-410(g).

(Appellant’s Appendix 2 at 100-01). Hamilton alleged in Count II that Hall violated the FDCPA. Id. at 101. She asked for declaratory judgment pursuant to Ind.Code В§ 24-4.5-7-409( 4)( ag ag e) that Payday had no right to gather, get, or retain any principal, interest, or any other costs through the loan. She additionally asked for statutory damages of $2000 and expenses and damages pursuant to Ind.Code В§ 24-4.5-7-409(4)(e). She further asked for statutory damages of $500 pursuant to Ind.Code В§ 24-4.5-7-409(4)(c) and Ind.Code В§ 24-5-0.5-4. Finally, she asked for statutory damages of $1000 pursuant to 15 U.S.C. В§ 1692k(a) and “such other and further relief as the court deems simply and equitable.” Id.

Payday and Hall reacted by filing a remedy and three counterclaims against Hamilton for (1) defrauding a lender under Ind.Code В§ 35-43-5-8, (2) moving a negative check under Ind.Code В§ 26-2-7-6, and (3) breach of a agreement.


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