(1)(a) The administrator may bring a
civil action against a creditor for making or collecting charges in excess of those
permitted by this code, violating any of the provisions of this code applying to
limitations on the schedule of payments or loan term for supervised loans or
authority to make supervised loans, or for disclosure violations. An action may
relate to transactions with more than one consumer. If it is found that an excess
charge has been made, the court shall order the respondent to refund to the
consumer the amount of the excess charge and to pay a penalty to the consumer as
provided in sections 5-5-201 and 5-5-202. In addition, the court may assess a civil
penalty of up to one thousand dollars for each violation of this code.
(b)If a creditor has made an excess
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(1) (a) The administrator may bring a
civil action against a creditor for making or collecting charges in excess of those
permitted by this code, violating any of the provisions of this code applying to
limitations on the schedule of payments or loan term for supervised loans or
authority to make supervised loans, or for disclosure violations. An action may
relate to transactions with more than one consumer. If it is found that an excess
charge has been made, the court shall order the respondent to refund to the
consumer the amount of the excess charge and to pay a penalty to the consumer as
provided in sections 5-5-201 and 5-5-202. In addition, the court may assess a civil
penalty of up to one thousand dollars for each violation of this code.
(b) If a creditor has made an excess charge in deliberate violation of or in
reckless disregard for this code or if a creditor has refused to refund an excess
charge within a reasonable time after demand by the consumer or the
administrator, the court may also order the respondent to pay to the consumers a
civil penalty in an amount determined by the court not in excess of the greater of
either the amount of the finance charge or ten times the amount of the excess
charge. Refunds and penalties to which the consumer is entitled pursuant to this
subsection (1) may be set off against the consumer's obligation.
(c) If a consumer brings an action against a creditor to recover an excess
charge or civil penalty, an action by the administrator to recover for the same
excess charge or civil penalty shall be stayed while the consumer's action is
pending and shall be dismissed if the consumer's action is dismissed with prejudice
or results in a final judgment granting or denying the consumer's claim. There shall
be no double recovery for refunds of excess charges or a penalty payable to the
consumer.
(d) With respect to excess charges arising from revolving accounts, no
action pursuant to this subsection (1) may be brought more than four years after the
time the excess charge was made. With respect to excess charges arising from
other consumer credit transactions, no action pursuant to this subsection (1) may be
brought more than four years after the due date of the last scheduled payment of
the agreement pursuant to which the charge was made.
(e) If the creditor establishes by a preponderance of evidence that a violation
is unintentional or the result of a bona fide error, no liability to pay a penalty shall
be imposed under this subsection (1).
(2) The administrator may bring a civil action against a creditor or a person
acting in the creditor's behalf to recover a civil penalty for willfully violating this
code, and, if the court finds that the defendant has engaged in a course of repeated
and willful violations of this code, it may assess a civil penalty of no more than five
thousand dollars. All or part of the penalty under this subsection (2) may be
specifically designated for consumer and creditor education. No civil penalty
pursuant to this subsection (2) may be imposed for violations of this code occurring
more than four years before the action is brought or for making unconscionable
agreements or engaging in a course of fraudulent or unconscionable conduct.
(3) If the administrator prevails in an action brought under this section, the
administrator may recover his or her reasonable costs in investigating and bringing
the action and request an order for reimbursement of his or her reasonable attorney
fees.