PAYDAY TODAY, INC., Edward R. Hall, Appellants-Defendants, v. Maria L. HAMILTON, Appellee-Plaintiff.
STATEMENT OF CASE
Defendants/Counterclaimants-Appellants Payday Today, Inc. (вЂњPaydayвЂќ) and Edward R. Hall (вЂњHallвЂќ) (collectively, вЂњthe defendantsвЂќ) appeal from the test court’s grant of judgment in the pleadings together with grant of summary judgment in support of Plaintiff-Appellee Maria L. Hamilton (вЂњHamiltonвЂќ). We affirm in part, reverse to some extent, and remand.
The defendants raise five dilemmas for the review, which we restate since:
We. Perhaps the test court erred in giving summary judgment on Hamilton’s claim underneath the Small Claims Act.
II. Whether or not the test court erred in giving summary judgment on Hamilton’s claim beneath the Fair commercial collection agency methods Act.
III. Whether or not the test Louisiana payday loans and cash advances court erred in giving judgment for Hamilton in the defendants’ counterclaims.
IV. Perhaps the defendants had been unfairly rejected leave to amend their counter-complaint.
V. Perhaps the test court erred in granting lawyer charges to Hamilton.
FACTS AND PROCEDURAL HISTORY
Payday is a loan that is payday, and Hall is its lawyer. AвЂњsmall loanвЂќ as defined by Ind.Code В§ 24-4.5-7-104(a) in July of 2004, Payday loaned $125.00 to Hamilton. Beneath the regards to the mortgage contract, Hamilton would be to spend $143.75, such as the $125.00 principal as well as an $18.75 solution cost, within fourteen days through the date associated with the loan. As protection when it comes to loan, Hamilton supplied Payday with a post-dated look for $143.75. Whenever Hamilton’s check ended up being returned to Payday, Hall mailed her a page demanding the quantity of the check, along with a $20.00 returned check cost and $300.00 in lawyer charges. The page claimed that payment among these quantities had been essential for Hamilton in order to prevent a lawsuit. Especially, 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 tiny loan contract No вЂ¤, dated 06/03/2004. This loan provider accepted your check as safety for the loan into the quantity of ($143.75). The contract called for the check to be cashed pursuant into the 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 would not honor your check. You’ve been formerly notified by the loan provider of one’s returned check and also have taken no action to solve the situation.
IF YOU WISH TO RESOLVE THIS SITUATION WITHOUT HAVING A LAWSUIT, this is the time to use it. To do this, you need to spend the next quantities, (1) the amount that is full of check plus, (2) a $20 returned check cost, and (3) lawyer costs of $300. This re re re re payment should be by means of a cashier’s check or cash 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 with this page, we might register suit straight away, by which you might be accountable for the after amount under I.C. В§ 24-4.7-5 et seq.; (1) the quantity of the check; (2) a twenty buck returned check cost; (3) court expenses; (4) reasonable attorney charges; (5) all the reasonable expenses of collection; (6) 3 x (3x) the total amount of the verify that the face area quantity of the check had not been higher than $250.00, or (7) in the event that face level of the check ended up being $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 year.
(Appellants’ App. 1 at 13; Appellant’s App. 2 at 17). (Emphasis in initial). Hall’s page further recommends Hamilton that she might be responsible for different damages if she ended up being discovered to own presented her sign in a fraudulent way.
Hamilton filed an issue against Payday and Hall alleging violations associated with the Indiana Uniform customer Credit Code-Small Loans (Ind.Code В§ 24-4.5-7 et seq.) (вЂњSLAвЂќ) and also the Fair that is federal Debt techniques Act (15 U.S.C. В§ 1692) (вЂњFDCPAвЂќ). In Count We of this issue, Hamilton alleged that Payday violated the SLA whenever
a. Hall threatened вЂ¤ to file case against Hamilton that will demand damages in overabundance what the defendants are allowed to recoup under I.C. 24-4.5-7-202, thus breaking I.C. 24-4.5-7-410(b), and Payday caused this risk to be produced, therefore breaking I.C. 24-4.5-7-410(b).
b. Hall made misleading and misleading statements to Hamilton вЂ¤ 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 manufactured, therefore breaking I.C. 24-4.5-7-410(c).
c. Hall represented in their letter that Hamilton, as being a debtor of a little loan, is likely for lawyer costs compensated because of the loan provider regarding the the number of the little loan, thus breaking I.C. 24-4.5-7-410(d), and Payday caused these representations to be manufactured, 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 little loan, therefore breaking I.C. 24-4.5-7-410(g), and Payday caused these representations to be manufactured, therefore 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 ag ag e) that Payday had no right to gather, get, or retain any principal, interest, or any other fees 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 вЂњsuch other and relief that is further the court deems simply and equitable.вЂќ Id.
Payday and Hall reacted by filing a remedy and three counterclaims against Hamilton for (1) defrauding an institution that is financial Ind.Code В§ 35-43-5-8, (2) moving a poor check under Ind.Code В§ 26-2-7-6, and (3) breach of the agreement.