Payday Loans are risky business for both borrower and lender
In the good ol’ days, when someone bounced a check on you in Michigan, you could sue for 3 times the amount of the check plus $250 in costs. See MCL 600.2952. While most of us in Michigan still enjoy this law, Payday Loan companies do not. These companies have sprung up around our state like dandelions in June. They offer money to people on a very short term basis. The Michigan legislature appears to be treating them as most people treat dandelions in June; not nicely at all!
In 2005, the Michigan legislature passed the DEFERRED PRESENTMENT SERVICE TRANSACTIONS ACT. MCL 487.2122. It governs these payday loan companies (“PLC”) by requiring them to be licensed and not lending more than $600 and charging no more than 11%-15% for the privilege. In fact, these payday loan companies can’t even make more than one loan at time to an individual. Furthermore, the PLC has to check to make sure that the borrower does not have another outstanding payday loan with another PLC before it can make the loan. So why does this statute have me in a dither?
First, the statute prevents the PLC from suing for treble damages on a bad check. If the consumer writes a bad check to the grocery store, then Krogers can sue for three times the amount of the check. Not so for the PLC. The PLC gets a whopping $25 fee. So not only is the lender’s rate of return highly regulated, but now its damages are equally regulated (read eviscerated”). To add insult to injury, the statute prohibits pursuing criminal charges against the consumer if he bounces the check. Krogers can turn its check over to the prosecutor, but PLCs cannot. Pretty unfair huh?
Judge Laura Mack from the 29th District Court in Wayne Michigan, wrote an interesting article on the subject. In her article, she implores consumers to be aware of their rights in this regard and to turn in PLCs that still sue for treble damages. There are many of them out there. PLCs can be fined as much as $1,000 or more than $10,000 for each violation. There is also a private right of action by the consumer against the PLC for costs and attorney’s fees.
Lessons learned –
1. PLCs have to very careful when setting up shop and enforcing their rights. PLCs have to be especially careful when selecting an attorney to enforce their rights under these bad checks. After all, if an attorney pursues the PLC’s rights under the check and seeks treble damages, the attorney not only puts the PLC’s license at risk, but the attorney may face liability to the consumer under the Fair Debt Collection Practices Act.
2. Attorney better be very careful when pursing these bad checks. As stated above, if they pursue claims that they do not have the right to pursue, they put their client’s license at risk, not to mention the costs of fines, etc. This is a malpractice action just waiting to happen.
3. No conversation by me would be complete without discussing the Fair Debt Collection Practices Act implications. Remember it is a violation of the FDCPA to take action or threaten to take action that you do not presently have the right to take. Suing a debtor for violation treble damages on behalf of a PLC puts the attorney squarely in an FDCPA lawsuit. This just turns this case into a complete nightmare.
Best practice is become familiar with MCL 487.2122 and respect the bounds of the law, like it or not.
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