PART VI. VIOLATIONS

§969.33. Effect of violations on rights of parties

            A.(1)(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 Part II of this Chapter regulating loan finance charges, credit service charges, and other fees and charges, the affected 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.

            (b) The right to recover the civil penalty under this Subsection accrues only after all of the following have occurred:

            (i) The affected consumer or his representative delivers written notice to the extender of credit by certified mail addressed to the extender of credit's place of business in which the motor vehicle credit transaction arose.

            (ii) A copy of such notice is mailed to the extender of credit's agent for service of process.

            (iii) Thirty days have elapsed since receipt of such notice by the extender of credit and the violation has not been corrected.

            (c) Except as otherwise provided herein, if the notices provided for in Subparagraph (b) of this Paragraph have been given by the consumer, the extender of credit shall be presumed to have committed an intentional violation or a violation not resulting from good faith error if the extension of credit fails to return or give credit for an overcharge in the loan finance charge or credit service charge or, fails to return a deficiency in the rebate within the time period set forth in Item (b)(iii) of this Paragraph, provided that such overcharge or deficiency exceeds the greater of either ten percent of such loan finance charge, credit service charge, or rebate or fifteen dollars.

            (d) If the extender of credit fails to return or give credit for an overcharge or deficiency as provided in Subparagraph (c) of this Paragraph, in addition to the penalties in Subparagraph (a) of this Paragraph, the consumer executing the motor vehicle 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.

            (e) In the case of multiple violations involving an overcharge in the loan finance charge, credit service charge, or rebate of the size described in Subparagraph (c) of this Paragraph, the extender of credit must notify the commission of the existence of such multiple violation and must give the commission 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 commission 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 commission 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)(a) If a violation of Part II of this Chapter is not intentional or is made in good faith on the part of the extender of credit, or if the consumer violates any other provision of this Chapter, 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.

            (b) If a complaining consumer gives the extender of credit the written notice required by Items (1)(b)(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 individual 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. An extender of credit has no liability for the civil remedies granted by this Section, including without limitation any liability for payment of fees to the consumer's attorney, whether under this Chapter or under any other law of the state, in all instances and, whether intentional or resulting from good faith error or not, if within sixty days after discovering a violation, or within thirty days following receipt of notice from the consumer, the extender of credit corrects the violation. If the violation consists of a prohibited agreement, giving the consumer a corrected copy of the contract containing the violation is sufficient correction. If the violation consists of an excess charge, correction shall be made by an adjustment or refund.

            C.(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. Each written notice required by Subparagraph (A)(1)(b) of this Section shall identify the individual contract at issue, the name of the extender of credit, and the name of the individual consumer, and shall include the date and a reasonable description of the alleged violation.

            (2) 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.

            D. Any civil action under this Section must be brought within one year of the date of the violation. Motor vehicle credit contracts may include compulsory arbitration clauses.

            E. As used in this Section, the following terms shall have these meanings:

            (1) "Civil remedies" means civil penalties, attorney fees, and out-of-pocket expenses.

            (2) "Good faith error" means errors of law as well as errors of fact.

            (3) "Multiple violation" means a violation which has recurred more than one hundred times as a result of a common error.

            F. Attorney fees shall be measured by the time reasonably expended by the consumer's attorney and not by the amount of recovery.

            G. The remedies provided in this Section shall be exclusive and shall apply prospectively to all motor vehicle credit transactions consummated on and after July 1, 1999.

            Acts 1999, No. 794, §1, eff. July 2, 1999.