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

PAYDAY TODAY, INC., Edward R. Hall, Appellants-Defendants, v. Maria L. HAMILTON, Appellee-Plaintiff.

No. 71A03-0805-CV-255.

STATEMENT OF CASE

Defendants/Counterclaimants-Appellants Payday Today, Inc. (“Payday”) and Edward R. Hall (“Hall”) (collectively, “the defendants”) appeal from the test court’s grant of judgment from the pleadings additionally the grant of summary judgment in support of Plaintiff-Appellee Maria L. Hamilton (“Hamilton”). We affirm in part, reverse to some extent, and remand.

The defendants raise five problems for the review, which we restate since:

We. If 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 business collection agencies methods Act.

III. Whether or not the test court erred in granting judgment for Hamilton in the defendants’ counterclaims.

IV. Whether or not the defendants had been unfairly rejected leave to amend their counter-complaint.

V. Whether or not the test court erred in giving lawyer costs to Hamilton.

FACTS AND PROCEDURAL HISTORY

Payday is a payday financial institution, and Hall is its lawyer. A“small loan” as defined by Ind.Code В§ 24-4.5-7-104(a) in July of 2004, Payday loaned $125.00 to Hamilton. Underneath the regards to the mortgage contract, Hamilton would be to spend $143.75, like the $125.00 principal plus an $18.75 solution cost, within fourteen days through the date for the loan. As safety when it comes to loan, Hamilton supplied Payday having a check that is post-dated $143.75. Whenever Hamilton’s check ended up being gone back to Payday, Hall mailed her a page demanding the amount of the check, in conjunction with a $20.00 returned check cost and $300.00 in lawyer costs. The page claimed that payment of those quantities ended up being essential 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 online payday VT to represent the above lender with respect to a little loan contract No ․, dated 06/03/2004. This loan provider accepted your check as safety for a financial loan into the quantity of ($143.75). The contract called for the check to be cashed pursuant towards the regards to the mortgage contract, in the event that you hadn’t formerly made plans to fulfill the mortgage. You’ve got did not make re re payment towards the loan provider as agreed, and upon presentation, the banking organization by which it had been drawn failed to honor your check. You’ve been formerly notified by the loan provider of one’s returned check while having taken no action to solve the situation.

IF YOU’D LIKE TO RESOLVE THIS THING WITHOUT HAVING A LAWSUIT, the time has come 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 payment needs to be in the shape of a cashier’s money or check purchase payable to Attorney Edward R. Hall. In the event that you don’t spend in complete the quantity due within ten times through the date for this page, we possibly may register suit instantly, by which you could be responsible 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 lawyer costs; (5) all the other reasonable expenses of collection; (6) 3 x (3x) the total amount of the verify that the facial skin quantity of the check wasn’t higher than $250.00, or (7) in the event that face number 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 suggests Hamilton that she could possibly be accountable for different damages if she ended up being discovered to own presented her sign in a fraudulent way.

Hamilton filed a problem against Payday and Hall alleging violations associated with the Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) together with Fair that is federal Debt techniques 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, therefore breaking I.C. 24-4.5-7-410(b), and Payday caused this hazard 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 little loan, therefore breaking I.C. 24-4.5-7-410(c), and Payday caused these statements to be manufactured, thus breaking I.C. 24-4.5-7-410(c).

c. Hall represented in their letter that Hamilton, as a debtor of a tiny loan, is likely for lawyer charges compensated by the loan provider relating to 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, thus 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 e) that Payday had no right to get, get, or retain any principal, interest, or 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 response and three counterclaims against Hamilton for (1) defrauding an institution that is financial 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.