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.