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 together with 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:
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 underneath the Fair commercial collection agency tactics Act.
III. Whether or not the test court erred in giving judgment for Hamilton from 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 charges to Hamilton.
FACTS AND PROCEDURAL HISTORY
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Payday is just 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). Underneath the regards to the mortgage contract, Hamilton would be to spend $143.75, like the $125.00 principal as well as an $18.75 solution fee, within fourteen days through the date of this loan. As protection for the loan, Hamilton offered Payday by having 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 quantity 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 tiny loan contract No ․, dated 06/03/2004. This loan provider accepted your check payday loans in North Carolina as safety for a financial loan in the quantity of ($143.75). The contract called for your 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 did not make re re payment into the loan provider as agreed, and upon presentation, the banking organization on which it had been drawn would not honor your check. You’ve got been formerly notified by the loan provider of one’s returned check while having 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 need to spend the next quantities, (1) the complete number of the check plus, (2) a $20 returned check charge, and (3) lawyer charges of $300. This re re payment needs to be by means of a cashier’s check or cash purchase payable to Attorney Edward R. Hall. In the event that you are not able to spend in complete the quantity due within ten times through the date for this page, we possibly may register suit instantly, where you might be accountable for the after amount under I.C. В§ 24-4.7-5 et seq.; (1) the quantity 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 face area level 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 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 if she was found to have presented her check in a fraudulent manner that she could be liable for various damages.
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”) while the Fair that is federal Debt methods Act (15 U.S.C. § 1692) (“FDCPA”). In Count We associated with 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 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 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 produced, 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 because of the loan provider relating to the assortment of the little 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, 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 e) that Payday had no right to gather, get, or retain any principal, interest, or other costs through the loan. She also 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 response and three counterclaims against Hamilton for (1) defrauding an institution that is financial Ind.Code В§ 35-43-5-8, (2) moving a poor check under Ind.Code В§ 26-2-7-6, and (3) breach of the agreement.