§ 40-19-109 — Default; notice of default and right to cure

(a) In any rental-purchase agreement, after a consumer is
in default for three (3) business days or more and does not
voluntarily surrender possession of the rented property, a
merchant may give the consumer the notice provided in this
section. Notice may be given to the consumer under this section
by the merchant personally delivering the notice to the consumer
or by mailing the notice to the consumer's last known
residential address. Notice may also be given by delivering the
communication to the consumer by email or other electronic means
if the consumer provides written consent to receive notice by
email or other electronic means in response to a clear and
conspicuous request for consent.
(b) The notice shall be in writing and conspicuously state
the name, address and telephone number of the merchant to whom
payment is made, a brief identification of the transaction, the
consumer's right to cure any default, the amount of payment and
the date the payment shall be made to cure the default. The
notice shall be in substantially the form required by rule of
the commissioner.
(c) With respect to rental-purchase agreements with
payments or options to renew more frequently than monthly, after
default consisting of failure to renew or return the property, a
merchant may not initiate court action to recover rented
property until three (3) business days after notice of the
consumer's right to cure is given. With respect to all other
rental-purchase agreements, after default consisting of failure
to renew or return the property, a merchant may not initiate
court action to recover rented property until five (5) business
days after notice of the consumer's right to cure is given.
(d) After notice is given and until expiration of the
minimum applicable period, a consumer may cure all defaults
consisting of failure to renew and failure to return the
property by tendering the amount of all unpaid sums due and
payment of a renewal payment.
(e) This section shall not prohibit a consumer from
voluntarily surrendering possession of property that is rented
or a merchant from requesting and accepting surrender of
property at any time after default. In any enforcement
proceeding, a merchant shall affirmatively plead and prove
either that the notice to cure is not required or that the
merchant has given the required notice. The failure to plead
shall not invalidate any action taken by the merchant that is
otherwise lawful and if the merchant had rightfully repossessed
the property the repossession shall not constitute conversion.