§3552. Effect of violations on rights of parties
A. Violations discovered as a result of written consumer complaint
(1)Intentional violations or violations not caused by good faith errors.
(a)If the court finds that the extender of credit has intentionally or as a result
of error not in good faith violated the provisions of this Chapter, the consumer is
entitled to a refund of all loan finance charges or credit service charges and has the
right to recover three times the amount of such loan finance charge or credit service
charge together with reasonable attorney fees. The right to recover the civil penalty
under this Subsection accrues only after:
(i)Written notice is given to the extender of credit by certified mail
addressed to the extender of credit's place of business in which the
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§3552. Effect of violations on rights of parties
A. Violations discovered as a result of written consumer complaint
(1) Intentional violations or violations not caused by good faith errors.
(a) If the court finds that the extender of credit has intentionally or as a result
of error not in good faith violated the provisions of this Chapter, the consumer is
entitled to a refund of all loan finance charges or credit service charges and has the
right to recover three times the amount of such loan finance charge or credit service
charge together with reasonable attorney fees. The right to recover the civil penalty
under this Subsection accrues only after:
(i) Written notice is given to the extender of credit by certified mail
addressed to the extender of credit's place of business in which the consumer credit
transaction arose;
(ii) A copy of such notice is mailed to the extender of credit's agent for
service of process; and
(iii) Thirty days have elapsed since receipt of such notice by the extender of
credit, and the violation has not been corrected.
(b) Except as otherwise provided herein, if the notices provided for in
Subparagraph (a) of this Paragraph have been given by the consumer, the following
acts by the extender of credit shall be presumed to be an intentional violation or a
violation not resulting from good faith error:
(i) Failure to return or give credit for an overcharge in the loan finance charge
or credit service charge or, failure to return a deficiency in the rebate within the time
period set forth in Item (a)(iii) of this Paragraph when such overcharge or deficiency
exceeds the greater of ten percent of such loan finance charge, credit service charge,
or rebate; or fifteen dollars.
(c) If the extender of credit fails to return or give credit for an overcharge or
deficiency as provided in Subparagraph (b) of this Paragraph, in addition to the
penalties in Subparagraph (a) of this Paragraph, the consumer executing the
consumer credit transaction and giving the required notices shall be entitled to collect
from the extender of credit up to one hundred dollars of his actual documented
out-of-pocket expenses incurred as a direct result of such failure to act.
(d) In the case of multiple violations involving an overcharge in the loan
finance charge, credit service charge or rebate of the size described in Item (b)(i) of
this Paragraph, the extender of credit must notify the commissioner of the existence
of such multiple violation and must give the commissioner a reasonable description
of such multiple violation within thirty days after the receipt of the written notice
from the complaining consumer, and the extender of credit must correct such
multiple violation as to each consumer affected thereby within thirty days of the
receipt of the written notice from the complaining consumer. Upon good cause
shown, the commissioner may grant up to two thirty day extensions within which the
extender of credit must correct the violation. If the extender of credit fails to give the
commissioner the required notice or fails to correct such multiple violation as
required herein, then from such failure it shall be presumed that such multiple
violation was intentional or not in good faith.
(2) Unintentional violations or violations caused by good faith errors.
(a) If a violation of this Chapter is not intentional or is made in good faith on
the part of the extender of credit the court may require the extender of credit to
correct the violation, but the consumer is not entitled to the civil remedies granted by
this Section; provided, however, that the provisions hereof shall not protect the
extender of credit if the provisions of Subparagraphs (1)(b) and (d) of this Subsection
are applicable.
(b) If the complaining consumer gives the extender of credit written notice
as provided in Items (1)(a)(i) and (ii) of this Subsection of an alleged violation of the
provisions of this Chapter, although such violation was unintentional or resulted from
good faith error or did not in fact exist, the extender of credit must give the
complaining consumer a reasonable response to the complaint in writing within thirty
days of the receipt of written notice from the complaining consumer. If the extender
of credit fails to give such response timely, the complaining consumer shall be
entitled to collect from the extender of credit up to one hundred dollars of his actual
documented out-of-pocket expenses incurred as a direct result of the failure of the
extender of credit to comply with the provisions hereof.
B. Self-discovered violations
(1) An extender of credit has no liability for the civil remedies granted by this
Section in all instances other than multiple violations and whether intentional or
resulting from good faith error or not, if: (a) within fifteen days after discovering a
violation and prior to receipt of written notice of such violation from a consumer, or
(b) within fifteen days after the occurrence of such violation, regardless of receipt of
such notice from a consumer, the extender of credit gives written notice to the
consumer or his designated agent of the violation and corrects the violation. If the
violation consists of a prohibited agreement, giving the consumer a corrected copy
of the writing containing the violation is sufficient notification and correction. If the
violation consists of an excess charge, correction shall be made by an adjustment or
refund.
(2) In the case of all self-discovered multiple violations whether intentional
or resulting from good faith error or not, the extender of credit shall have no liability
for the civil remedies granted by this Section if: (a) within fifteen days after
discovering such violations the commissioner is notified of the existence of such
multiple violation and given a reasonable description thereof, and (b) such violations
are corrected as to each consumer affected thereby within thirty days after
discovering such violations. Upon good cause shown, the commissioner may grant
up to two thirty-day extensions within which the extender of credit may correct the
violation. If a consumer delivers written notice of such violation at any time after the
commissioner is notified by the extender of credit, it shall not affect the rights of the
extender of credit to be relieved of liability as provided herein.
C. No act done or omitted in conformity with any advisory opinion or
interpretation issued by the office of financial institutions at the time of the act or
omission or subsequent to the act or omission shall constitute a violation of this
Chapter, notwithstanding that after such act or omission has occurred, such advisory
opinion or interpretation is amended, rescinded, or determined by judicial or other
authority to be invalid for any reason. Advisory opinions and interpretations of the
office of financial institutions shall not be considered rules requiring compliance with
the rulemaking process of the Administrative Procedure Act. The commissioner and
the employees of the office of financial institutions shall have no liability to any
person with respect to an advisory opinion or interpretation issued in connection with
this Chapter.
D.(1) Except as otherwise provided herein, any written notice required in this
Section may be mailed by registered, certified, first class, or air mail at the sender's
option. Proof of receipt by the extender of credit may consist of a return receipt
executed by an employee of the extender of credit. Proof of receipt by the consumer
may be a return receipt executed by the consumer. Proof of mailing any written
notice may be a postmarked registered mail receipt, a postmarked certified mail
receipt, or a post office certificate of mailing.
(2) The written notice shall identify the contract, state the names of the
extender of credit and the consumer, and shall include the date and a reasonable
description of the violation.
(3) In any case where the extender of credit must respond in writing to a
complaining consumer, the written notice or other required written response shall be
mailed to the last address contained in the extender of credit's file on that consumer,
unless the consumer specifies a different address in his written notice sent to the
extender of credit.
E. Any civil action under this Section must be brought within sixty days of
final payment of the consumer credit contract, or in the case of a revolving loan or
revolving charge account, within one year of the date of the violation.
F. Definitions of terms used in this Section:
(1) The term "civil remedies" as used in this Section shall include civil
penalties, attorney fees and out-of-pocket expenses.
(2) The term "good faith error" as used in this Section shall include errors of
law as well as errors of fact.
(3) The term "multiple violation" as used in this Section means a violation
which has recurred more than one hundred times as a result of a common error.
G. Attorney fees shall be measured by the time reasonably expended by the
consumer's attorney and not by the amount of recovery.