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 trial court’s grant of judgment in the pleadings together with grant of summary judgment in support of Plaintiff-Appellee Maria L. Hamilton (“Hamilton”). We affirm in part, reverse in component, and remand.
The defendants raise five problems for the review, which we restate since:
We. Whether or not the test court erred in giving summary judgment on Hamilton’s claim beneath the Small Claims Act.
II. Whether or not the test court erred in giving summary judgment on Hamilton’s claim underneath the Fair business collection agencies methods Act.
III. Perhaps https://installmentloansgroup.com/payday-loans-wa/ the test court erred in giving judgment for Hamilton regarding the defendants’ counterclaims.
IV. If the defendants had been unfairly rejected leave to amend their counter-complaint.
V. Whether or not the test court erred in giving lawyer charges to Hamilton.
FACTS AND PROCEDURAL HISTORY
Payday is really a loan that is payday, 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 of this loan. As protection when it comes to loan, Hamilton offered Payday with a check that is post-dated $143.75. Whenever Hamilton’s check had been 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 charges. The page claimed that payment among these quantities ended up being needed for Hamilton in order 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 lender that is above respect to a tiny loan contract No ․, dated 06/03/2004. This loan provider accepted your check as safety for a financial loan within 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 fulfill the mortgage. You’ve got neglected to make re 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 possess taken no action to solve the situation.
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 complete quantity of the check plus, (2) a $20 returned check cost, and (3) lawyer costs of $300. This re payment needs to be in the shape of a cashier’s check or cash purchase payable to Attorney Edward R. Hall. We may file suit immediately, in which you may be liable for the following amount under I.C. В§ 24-4.7-5 if you fail to pay in full the amount due within ten days from the date of this letter et seq.; (1) the quantity of the check; (2) a twenty buck returned check cost; (3) court expenses; (4) reasonable lawyer costs; (5) other reasonable expenses of collection; (6) 3 times (3x) the amount of the verify that the face area quantity of the check wasn’t more than $250.00, or (7) in the event that face number of the check had been $250.00 or maybe more, 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 accountable for different damages if she ended up being discovered to own presented her sign in a fraudulent way.
Hamilton filed a grievance against Payday and Hall alleging violations for the Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) and also the Fair that is federal Debt techniques Act (15 U.S.C. § 1692) (“FDCPA”). In Count We associated with the issue, Hamilton alleged that Payday violated the SLA whenever
a. Hall threatened ․ to file case against Hamilton that could 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, 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 little loan, thus 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, therefore 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 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 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 solution 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.
