PAYDAY INC v. HAMILTON today. Court of Appeals of Indiana

PAYDAY TODAY, INC., Edward R. Hall, Appellants-Defendants, v. Maria L. HAMILTON, Appellee-Plaintiff.

No. 71A03-0805-CV-255.


Defendants/Counterclaimants-Appellants Payday Today, Inc. (“Payday”) and Edward R. Hall (“Hall”) (collectively, “the defendants”) appeal from the test court’s grant of judgment in the pleadings while 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 dilemmas 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 underneath the Fair commercial collection agency techniques Act.

III. Whether or not the test court erred in giving judgment for Hamilton from the defendants’ counterclaims.

IV. If 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.


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). 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 fee, within fourteen days through the date regarding the loan. As safety when it comes to loan, Hamilton offered Payday by having a post-dated look for $143.75. Whenever Hamilton’s check ended up being gone back 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 of those amounts had been essential for Hamilton to prevent a lawsuit. Especially, the page claimed in pertinent component:

Re: DISHONORED CHECK TO Payday Today, Inc./South Bend

Please be encouraged that this workplace is 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 protection for the 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 mortgage contract, in the event that you hadn’t formerly made plans to meet the mortgage. You have got did not make re re re re payment towards the loan provider as agreed, and upon presentation, the banking organization upon which it absolutely was drawn didn’t honor your check. You’ve got been formerly notified because of the loan provider of one’s returned check and now have taken no action to eliminate the situation.

SHOULD YOU WANT TO RESOLVE THIS SITUATION WITHOUT HAVING A LAWSUIT, the time has come to use it. To take action, you have to spend the next quantities, (1) the complete number of the check plus, (2) a $20 returned check charge, and (3) lawyer costs of $300. This re re re re re payment must certanly be in the shape of a cashier’s money or check purchase payable to Attorney Edward R. Hall. In the event that you neglect to spend in complete the quantity due within ten days through the date of the page, we might register suit instantly, where you are responsible for the after amount under I.C. В§ 24-4.7-5 et seq.; (1) the total amount of the check; (2) a twenty buck returned check cost; (3) court costs; (4) reasonable lawyer charges; (5) all the other reasonable expenses of collection; (6) 3 times (3x) the amount of the verify that the facial skin quantity of the check had not been higher than $250.00, or (7) in the event that face quantity of the check had been $250.00 or even more, the check quantity plus five hundred bucks ($500.00), and pre-judgment interest at the price of 18% per annum.

(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 issue against Payday and Hall alleging violations regarding the Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) and also the federal Fair Debt Collection methods Act (15 U.S.C. § 1692) (“FDCPA”). In Count We associated with problem, 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 recuperate 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 manufactured, 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, being a debtor of a tiny loan, is likely for lawyer costs compensated because of 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 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, 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 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 “such other and relief that is further 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 negative check under Ind.Code В§ 26-2-7-6, and (3) breach of the agreement.