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 from the pleadings and also 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. Whether or not 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 summary judgment on Hamilton’s claim beneath the Fair commercial collection agency ways Act.

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

FACTS AND PROCEDURAL HISTORY

Payday is just a payday lender, 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). Underneath the regards to the mortgage contract, Hamilton would be to spend $143.75, like the $125.00 principal plus an $18.75 solution fee, within a fortnight through the date of this loan. As safety for the loan, Hamilton supplied 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, along with a $20.00 returned check cost and $300.00 in lawyer charges. The page claimed that payment of the quantities ended up being required for Hamilton in order to avoid a lawsuit. Particularly, the page claimed 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 safety for a financial loan when you look at the level of ($143.75). The contract called for the check to be cashed pursuant towards the regards to the loan contract, in the event that you hadn’t formerly made plans to fulfill the mortgage. You have got neglected to make re re re payment towards the loan provider as agreed, and upon presentation, the banking organization by which it had been drawn didn’t honor your check. You’ve been formerly notified by the loan provider of the returned check while having taken no action to eliminate the situation.

A LAWSUIT, now is the time for action IF YOU WANT TO RESOLVE THIS MATTER WITHOUT. To take action, you have to spend the next quantities, (1) the complete number of the check plus, (2) a $20 returned check cost, and (3) lawyer charges of $300. This re 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 total 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 times (3x) the amount of the verify that the facial skin level of the check had not been more than $250.00, or (7) in the event that face level of the check had been $250.00 or even more, the check quantity plus five hundred dollars ($500.00), and pre-judgment interest at the price of 18per cent per annum.

(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 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 of this Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) and also the Fair that is federal Debt methods Act (15 U.S.C. § 1692) (“FDCPA”). In Count We of this grievance, 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 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, 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, 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 being a debtor of a little loan, is likely for lawyer costs compensated because of the loan provider associated with the assortment of the little loan, thus breaking I.C. 24-4.5-7-410(d), and Payday caused these representations to be manufactured, 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 tiny loan, thus 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 e) that Payday had no right to get, 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 payday loans GA 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 remedy and three counterclaims against Hamilton for (1) defrauding a lender under Ind.Code В§ 35-43-5-8, (2) moving a poor check under Ind.Code В§ 26-2-7-6, and (3) breach of a agreement.