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 from the pleadings while 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. Perhaps the test court erred in giving summary judgment on Hamilton’s claim underneath the Small Claims Act.
II. Whether or not the test court erred in giving summary judgment on Hamilton’s claim beneath the Fair site commercial collection agency techniques Act.
III. Or perhaps a 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 costs to Hamilton.
FACTS AND PROCEDURAL HISTORY
Payday is a loan that is payday, and Hall is its lawyer. AвЂњsmall loanвЂќ as defined by Ind.Code В§ 24-4.5-7-104(a) in July of 2004, Payday loaned $125.00 to Hamilton. Underneath the regards to the mortgage contract, Hamilton would be to spend $143.75, like the $125.00 principal and an $18.75 solution cost, inside a fortnight through the date for the loan. As safety when it comes to loan, Hamilton supplied Payday with 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, along with a $20.00 returned check cost and $300.00 in lawyer charges. The page claimed that payment among these 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 above lender with respect to a little loan contract No вЂ¤, dated 06/03/2004. This loan provider accepted your check as protection for a financial loan when you look at the quantity of ($143.75). The contract called for the check to be cashed pursuant into 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 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 because of the loan provider of one’s returned check and now have taken no action to eliminate the problem.
IF YOU WISH TO RESOLVE THIS SITUATION WITHOUT HAVING A LAWSUIT, this is the time to use it. To do this, you have to spend the next quantities, (1) the amount that is full of check plus, (2) a $20 returned check charge, and (3) lawyer costs 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. 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 charges; (5) all the reasonable expenses of collection; (6) 3 x (3x) the amount of the verify that the facial skin number 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 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 if she was found to have presented her check in a fraudulent manner that she could be liable for various damages.
Hamilton filed an issue against Payday and Hall alleging violations associated with the Indiana Uniform customer Credit Code-Small Loans (Ind.Code В§ 24-4.5-7 et seq.) (вЂњSLAвЂќ) together with federal Fair Debt Collection techniques Act (15 U.S.C. В§ 1692) (вЂњFDCPAвЂќ). In Count We associated with problem, Hamilton alleged that Payday violated the SLA whenever
a. Hall threatened вЂ¤ to file case against Hamilton that will 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 hazard to be produced, 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 little loan, therefore breaking I.C. 24-4.5-7-410(c), and Payday caused these statements to be produced, therefore breaking I.C. 24-4.5-7-410(c).
c. Hall represented in their letter that Hamilton, being a debtor of a little loan, is likely for lawyer costs compensated because of the loan provider regarding the the assortment of the tiny 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 tiny loan, therefore breaking I.C. 24-4.5-7-410(g), and Payday caused these representations to be produced, 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 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) 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 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 the agreement.