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 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:
I. Or perhaps a test court erred in giving summary judgment on Hamilton’s claim beneath the Small Claims Act.
II. Perhaps the test court erred in giving summary judgment on Hamilton’s claim underneath the Fair business collection agencies tactics Act.
III. If 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 charges to Hamilton.
FACTS AND PROCEDURAL HISTORY
Payday is really 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, such as the $125.00 principal as well as an $18.75 solution cost, inside a fortnight through the date regarding the loan. As protection when it comes to loan, Hamilton offered Payday by having a post-dated search for $143.75. Whenever Hamilton’s check ended up being 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 among these quantities ended up being required 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 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 into the level 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 have got did not make re re re payment into 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 the returned check and have now taken no action to solve the problem.
A LAWSUIT, now is the time for action IF YOU WANT TO RESOLVE THIS MATTER WITHOUT. To take action, you need 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 re re re payment should 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 total amount of the check; (2) a twenty buck returned check cost; (3) court expenses; (4) reasonable lawyer charges; (5) all the reasonable expenses of collection; (6) 3 x (3x) the total 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 quantity 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 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 grievance 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 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, therefore 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, 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 being a debtor of a tiny loan, is likely for lawyer costs compensated by the loan provider associated with the number of the tiny 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, 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 e) that Payday had no right to gather, 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) payday loan location Alaska 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 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.