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 from 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 because:

We. Whether or not the test court erred in giving summary judgment on Hamilton’s claim beneath the Small Claims Act.

II. Whether or not the test court erred in giving summary judgment on Hamilton’s claim underneath the Fair business collection agencies procedures Act.

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

IV. Whether or not 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 really a payday financial institution, and Hall is its lawyer. A“small loan” 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 as well as an $18.75 solution fee, inside a fortnight through the date for the loan. As safety for the loan, Hamilton supplied Payday having 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, in conjunction with a $20.00 returned check cost and $300.00 in lawyer charges. The page claimed that payment of the quantities had been essential for Hamilton to prevent 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 tiny loan contract No ․, dated 06/03/2004. This loan provider accepted your check as protection for the loan in the number 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 payment towards 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 the returned check and now have taken no action to solve the problem.

IF YOU WOULD LIKE RESOLVE THIS SITUATION WITH OUT A LAWSUIT, the time has come to use it. To take action, you have to spend the next quantities, (1) the amount that is full of check plus, (2) a $20 returned check cost, and (3) lawyer charges of $300. This re re re payment should be by means 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 costs; (5) other reasonable expenses of collection; (6) 3 x (3x) the total amount of the verify that the facial skin number 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 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 various 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 regarding the 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 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 recoup 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 ․ 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 manufactured, thus 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 charges 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 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 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 ag e) that Payday had no right to gather, get, or retain any principal, interest, or other costs 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 remedy 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 a agreement.