Reliable Credit Corp. v. Smith

406 So. 2d 231, 1981 La. App. LEXIS 5196
CourtLouisiana Court of Appeal
DecidedOctober 12, 1981
DocketNo. 14289
StatusPublished
Cited by2 cases

This text of 406 So. 2d 231 (Reliable Credit Corp. v. Smith) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reliable Credit Corp. v. Smith, 406 So. 2d 231, 1981 La. App. LEXIS 5196 (La. Ct. App. 1981).

Opinion

EDWARDS, Judge.

Plaintiff, Reliable Credit Corporation, filed suit to collect the alleged balance due of $3,230.58 on a promissory note executed by defendants, Nathan and Geraldine Smith. The Smiths raised in defense, and asserted in set off, claims arising under the Louisiana Consumer Credit Law, LSA-R.S. 9:3510 et seq. The trial court rendered judgment for Reliable in the amount of $174.97, representing the $3,225.58 which was stipulated as being owed to plaintiff, less $3,050.61 which defendants were entitled to set off. Reliable appeals the judgment of the district court. The Smiths have answered the appeal, seeking an increase in the amount of their set off. We affirm the judgment of the district court as amended.

On September 22, 1978, the Smiths executed a promissory note, secured by a chattel mortgage, in favor of Reliable Credit Corporation in the amount of $4,400.00. The note was payable in twenty-four monthly installments of $185.00 each, with the first installment due on November 5, 1978, and each subsequent installment due on the fifth day of each month thereafter.

[233]*233The Smiths failed to make the payment due on November 5, 1978. On December 7, 1978, Nathan Smith went to the office of Reliable Credit Corporation in order to make a payment on his account. At that time, the November 5 and December 5 installments were due and outstanding. Smith paid $185.00 to George Vidrine, a representative of Reliable Credit Corporation. Vidrine deducted a $5.00 delinquency fee and applied the balance, $180.00, to the payment which was due on November 5. At Vidrine’s suggestion, Smith also paid a $46.00 deferral charge for the installment payment which was due on December 5, 1978.

The Smiths continued to fall behind in their installment payments, making them only irregularly. Finally, on September 26, 1979, Reliable accelerated the note and brought suit for the unpaid balance, less a rebate for the amount of unearned interest. Defendants filed their answer on October 25, 1979. On December 6, 1979, the Smiths filed an amended answer, alleging that Reliable had violated the Louisiana Consumer Credit Law. Written notice of these claimed violations was sent by certified mail to Reliable Credit Corporation and its agent for service of process and was received on December 7, 1979, and December 12, 1979, respectively. The alleged violations included a claim that the December 7, 1978, deferral charge was improperly imposed because the December 5 installment payment was not ten days delinquent at the time and the defendants had not agreed in writing to the deferral charge.

On January 31, 1980, (some 51-56 days after receipt of this notice) Reliable credited defendants’ account with a $5.00 refund for the delinquency charge made on December 7,1978, and switched the $46.00 deferral charge to apply to the November 5, 1978, installment payment.

The trial court held that Reliable was entitled to recover $3,225.58 on the note. The court further held that defendants were entitled to a set off of $3,050.61 due to plaintiff’s violation of the Louisiana Consumer Credit Law. This figure was computed as follows:

1. Imposed finance charge .$ 717.79
2. Penalty of three times the imposed finance charge . 2,153.37
3. Attorney fees in the amount of 25% of the imposed finance charges. 179.45
Total Set Off .$ 3,050.61

Judgment was rendered in favor of Reliable for the difference between the amount owed plaintiff and the amount of set off, $174.97, plus legal interest from date of judicial demand and 25% attorney fees.

Reliable Credit appeals, claiming that the trial court erred in:

1. Finding that plaintiff wrongfully imposed a $46.00 deferral charge on December 7, 1978;
2. Finding that plaintiff committed a bad faith violation of the Louisiana Consumer Credit Law; and
3. Assessing the penalty provisions of LSA-R.S. 9:3552.

Alternatively, plaintiff contends that if defendants were entitled to a set off, the trial court erred in allowing and fixing attorney fees.

Defendants have answered the appeal urging that the trial court erred in calculating the amount of the set off.

There is absolutely no doubt that plaintiff violated the Louisiana Consumer Credit Law, LSA-R.S. 9:3510 et seq. The imposition of both a deferral charge and a delinquency fee on December 7, 1978, was improper since plaintiff was properly entitled to impose only one of these charges. LSA-R.S. 9:3525 authorizes the imposition of a contractually agreed upon delinquency fee on an installment payment which is not paid within ten days after it is due. LSA-R.S. 9:3526 permits the parties to agree in writing to a deferral of an unpaid installment. Furthermore, if the loan contract so provides, LSA-R.S. 9:3526 permits the extender of credit to unilaterally impose a deferral charge if an installment payment is not paid within ten days of its due date.

When Nathan Smith made the $185.00 payment on December 7, 1978, the [234]*234November 5 installment payment was more than ten days overdue. Under the above mentioned statutes, Reliable had the option of imposing a delinquency fee or a deferral charge since both were authorized by the loan contract. The payment card introduced at trial and testimony of Vidrine and Smith indicate that Reliable imposed a $5.00 delinquency fee. On December 7, 1978, the December 5 installment payment had not been in default for more than ten days. Reliable was not, therefore, entitled to unilaterally impose a deferral charge. Any deferral charge was required by LSA-R.S. 9:2526 to be agreed to in writing. The testimony presented at trial shows that the $46.00 deferral charge made on December 5, 1978, for application to the December 5 installment payment, was not made pursuant to a written agreement. The imposition of this $46.00 deferral charge was a violation of the Louisiana Consumer Credit Law.

As noted above, this violation, along with other claimed violations, was asserted by defendants in their amended answer to plaintiff’s petition. Additionally, written notice of these claimed violations was sent by certified mail to Reliable Credit Corporation and its agent for service of process, in accordance with the requirements of LSA-R.S. 9:3552. Nearly two months after these notices were received, Reliable attempted to rectify the improper imposition of a deferral charge by switching the $46.00 deferral charge to apply to the November 5 installment payment, cancelling the $5.00 delinquency fee previously assessed on the November 5 installment, and crediting the $5.00 to defendants’ account. Plaintiff maintained that this switch was authorized by LSA-R.S. 9:3526(A), which provides that a “deferral charge may be collected at the time it is assessed or at any time thereafter.”

The trial court held that this change was made too late to be effective. The court stated:

“It is submitted that the ‘at anytime thereafter’ language in this provision refers to anytime during the life of the loan itself, but that the creditor no longer enjoys this privilege after suit is filed, the obligation itself is matured, collection of the obligation is passed into the hands of an attorney and notice of alleged violation is received by the creditor, and more than thirty days have passed without correction of the error.

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Related

Reliable Credit Corp. v. Smith
418 So. 2d 1311 (Supreme Court of Louisiana, 1982)

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Bluebook (online)
406 So. 2d 231, 1981 La. App. LEXIS 5196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reliable-credit-corp-v-smith-lactapp-1981.