PAYDAY TODAY INC v. HAMILTON. 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 regarding 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 because:

I. Perhaps the test court erred in giving summary judgment on Hamilton’s claim underneath the Small Claims Act.

II. Perhaps the test court erred in giving payday loans Minnesota summary judgment on Hamilton’s claim underneath the Fair business collection agencies procedures Act.

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

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

V. Perhaps the test court erred in giving lawyer costs to Hamilton.

FACTS AND PROCEDURAL HISTORY

Payday is just 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). Beneath the regards to the mortgage contract, Hamilton would be to spend $143.75, like the $125.00 principal and an $18.75 solution fee, inside a fortnight through the date for the loan. As protection when it comes to loan, Hamilton offered Payday with a post-dated search for $143.75. Whenever Hamilton’s check had been gone back to Payday, Hall mailed her a page demanding the quantity 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 had been needed for Hamilton in order to avoid 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 lender that is above respect to a little loan contract No ․, dated 06/03/2004. This loan provider accepted your check as protection for the loan into the level 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 fulfill the mortgage. You’ve got didn’t make re re payment into the loan provider as agreed, and upon presentation, the banking organization upon which it absolutely was drawn failed to honor your check. You’ve been formerly notified by the loan provider of the returned check and have now taken no action to eliminate the problem.

A LAWSUIT, now is the time for action IF YOU WANT TO RESOLVE THIS MATTER WITHOUT. To do this, you have to spend the next quantities, (1) the amount that is full of check plus, (2) a $20 returned check charge, and (3) lawyer charges of $300. This re re re re re payment should be by means of a cashier’s money or check purchase payable to Attorney Edward R. Hall. In the event that you neglect to spend in complete the quantity due within ten times through the date with this page, we might register suit instantly, by which you can be responsible 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 charges; (5) other reasonable expenses of collection; (6) 3 x (3x) the amount of the verify that the facial skin level 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 year.

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

Hamilton filed a problem against Payday and Hall alleging violations associated with Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) as well as the Fair that is federal Debt methods Act (15 U.S.C. § 1692) (“FDCPA”). In Count We associated with grievance, 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 recoup 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, therefore 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 manufactured, therefore 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 because of the loan provider associated with the number of the tiny loan, therefore breaking I.C. 24-4.5-7-410(d), and Payday caused these representations to be produced, therefore 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, 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 ag ag ag e) that Payday had no right to get, get, or retain any principal, interest, or 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 “such other and relief that is further the court deems simply and equitable.” Id.

Payday and Hall reacted by filing a solution 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 the agreement.