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 from the pleadings together with grant of summary judgment in support of Plaintiff-Appellee Maria L. Hamilton (“Hamilton”). We affirm in part, reverse in component, and remand.

The defendants raise five dilemmas for the review, which we restate because:

We. Perhaps 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 beneath the Fair commercial collection agency procedures Act.

III. Perhaps 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. If the test court erred in giving lawyer costs to Hamilton.

FACTS AND PROCEDURAL HISTORY

Payday is just a loan that is payday, 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. Beneath 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 cost, within fourteen days through the date for the loan. As protection for the loan, Hamilton supplied Payday having a check that is post-dated $143.75. Whenever Hamilton’s check had been returned to Payday, Hall mailed her a page demanding the amount of the check, along with a $20.00 returned check cost and $300.00 in lawyer charges. The page claimed that payment of the 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 ․, dated 06/03/2004. This loan provider accepted your check as protection for a financial loan within the number 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 fulfill the mortgage. You have got neglected to make re re re re re payment to your loan provider as agreed, and upon presentation, the banking organization by which it absolutely was drawn would not honor your check. You have got been formerly notified by the loan provider of one’s returned check and also have taken no action to solve the situation.

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 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 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 amount of the check; (2) a twenty buck returned check cost; (3) court expenses; (4) reasonable lawyer costs; (5) all the other reasonable expenses of collection; (6) 3 x (3x) the quantity 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 annum.

(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 a grievance against Payday and Hall alleging violations associated with Indiana Uniform customer Credit Code-Small Loans (Ind.Code § 24-4.5-7 et seq.) (“SLA”) therefore the federal Fair Debt Collection methods Act (15 U.S.C. § 1692) (“FDCPA”). In Count We of this problem, 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, thus 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, therefore breaking I.C. 24-4.5-7-410(c).

c. Hall represented in their letter that Hamilton, as a debtor of a little loan, is likely for lawyer costs compensated because of the loan provider regarding the 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 tiny 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 ag e) that Payday had no right to get, get, or retain any principal, interest, Our site 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 solution 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 a agreement.