Louisiana Revised Statutes 9:3552 – Effect of violations on rights of parties
Terms Used In Louisiana Revised Statutes 9:3552
- Commissioner: means the commissioner of financial institutions. See Louisiana Revised Statutes 9:3516
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Consumer: means a natural person who purchases goods, services, or movable or immovable property or rights therein, for a personal, family, or household purpose and includes a purchaser or buyer in a consumer credit sale or transaction made with the use of a seller credit card or otherwise, or a borrower or debtor in a consumer loan, revolving loan account, or a lender credit card. See Louisiana Revised Statutes 9:3516
- Consumer credit transaction: means a consumer loan or a consumer credit sale but does not include a motor vehicle credit transaction made pursuant to Louisiana Revised Statutes 9:3516
- Contract: A legal written agreement that becomes binding when signed.
- Credit service charge: means the sum of the following:
(i) All charges payable directly or indirectly by the consumer and imposed directly or indirectly by the seller as an incident to the extension of credit, including any of the following types of charges that are applicable: time price differential; service; carrying or other charge, however denominated; premium or other charge for any guarantee or insurance protecting the seller against the consumer's default or other credit loss; and
(ii) Charges paid by the consumer for investigating the collateral or credit worthiness of the consumer or for commissions or brokerage for obtaining the credit, irrespective of the person to whom the charges are paid or payable, unless the seller had no notice of the charges when the credit was granted. See Louisiana Revised Statutes 9:3516
- Finance charge: The total cost of credit a customer must pay on a consumer loan, including interest. The Truth in Lending Act requires disclosure of the finance charge. Source: OCC
- Loan finance charge: means the sum of the following:
(i) All charges payable directly or indirectly by the consumer and imposed directly or indirectly by the lender as a requirement of the extension of credit, including any of the following types of charges that are applicable: interest or any amount payable under a point, discount, or other system of charges, however denominated; and
(ii) Charges paid by the consumer for investigating the collateral or credit worthiness of the consumer. See Louisiana Revised Statutes 9:3516
- Person: as used in this Chapter means an individual or corporation, partnership, trust, association, joint venture pool, syndicate, sole proprietorship, unincorporated organization, or any other form of entity not specifically listed herein. See Louisiana Revised Statutes 9:3516
- Revolving charge account: means an arrangement between a seller or issuer of a seller credit card honored by the seller and a consumer pursuant to which:
(a) The creditor permits the consumer to purchase goods or services on a preauthorized basis;
(b) The creditor reasonably contemplates repeated transactions;
(c) The creditor may impose a credit service charge from time to time on the outstanding unpaid balance of the consumer's account;
(d) The amount of credit that may be extended to the consumer, up to any limit set by the creditor, is generally made available to the extent that any outstanding balance is repaid; and
(e) No credit service charges may be imposed upon the consumer for a billing period if the account is paid in full within a period of twenty-five days from the billing date. See Louisiana Revised Statutes 9:3516
- Service of process: The service of writs or summonses to the appropriate party.
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.
Added by Acts 1972, No. 454, §1, eff. Jan. 1, 1973; Acts 1995, No. 1184, §2; Acts 2000, 1st Ex. Sess., No. 34, §2, eff. April 14, 2000.