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 plus the grant of summary judgment in support of Plaintiff-Appellee Maria L. Hamilton (вЂњHamiltonвЂќ). 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 underneath the Small Claims Act.
II. If the test court erred in giving summary judgment on Hamilton’s claim underneath the Fair business collection agencies methods Act.
III. Or perhaps a test court erred in giving judgment for Hamilton regarding the defendants’ counterclaims.
IV. Perhaps the defendants had been unfairly rejected leave to amend their counter-complaint.
V. If 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 вЂњsmall loanвЂќ 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, such as the $125.00 principal and an $18.75 solution cost, within a fortnight through the date associated with the loan. As safety for the loan, Hamilton supplied Payday by having a check that is post-dated $143.75. Whenever Hamilton’s check ended up being 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 among these quantities had been needed for Hamilton 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 lender that is above respect to a little loan contract No вЂ¤, dated 06/03/2004. This loan provider accepted your check as safety for the loan in the number 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 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 got been formerly notified because of the loan provider of the returned check and possess taken no action to eliminate the problem.
IF YOU’D LIKE TO RESOLVE THIS QUESTION WITHOUT HAVING A LAWSUIT, this is the time to use it. To take action, 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 needs to be in the shape of a cashier’s money or check 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 amount of the payday loans VA check; (2) a twenty buck returned check cost; (3) court expenses; (4) reasonable lawyer charges; (5) other reasonable expenses of collection; (6) 3 times (3x) the total 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 level of the check ended up being $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 suggests Hamilton that she might be responsible 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 for the Indiana Uniform customer Credit Code-Small Loans (Ind.Code В§ 24-4.5-7 et seq.) (вЂњSLAвЂќ) in addition to Fair that is federal Debt methods 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 could demand damages in overabundance what the defendants are allowed to recoup under I.C. 24-4.5-7-202, therefore breaking I.C. 24-4.5-7-410(b), and Payday caused this risk to be manufactured, thus 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, thus breaking I.C. 24-4.5-7-410(c).
c. Hall represented in their letter that Hamilton, being a debtor of a tiny loan, is likely for lawyer charges compensated because of the loan provider relating to the number of the tiny loan, therefore violating 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, 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 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 вЂњsuch other and further relief as the court deems simply and equitable.вЂќ Id.
Payday and Hall reacted by filing a remedy and three counterclaims against Hamilton for (1) defrauding a standard bank 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 the agreement.