dissenting in part.
I respectfully dissent but only with respect to Division 3 of the Court’s opinion. Although I agree that there is no evidence of intentional misleading or a deliberate effort to collect more than the law allowed, I believe the law was not complied with by plaintiff.
With regard to how the original complaint sought more than the balance finally specified, the plaintiff’s witness Giddings testified that the discrepancy resulted from: “A clerical error as far as figuring the rate of interest that could be charged for the amount of days that he had the loan up until the time, the date of the loan.” Such language can only be construed to be that the amount finally charged was. the maximum permitted by law.
The cases cited by the trial judge and plaintiff have reference only to the necessity of the defendant establishing a violation by the *315record. See Hilley v. Finance America Corp., 145 Ga. App. 284 (243 SE2d 587) (1978), and Grier v. Employees Financial Services, 158 Ga. App. 813 (282 SE2d 342) (1981). This has nothing to do with the situation after an overcharge is shown. Thereafter the burden is on the plaintiff to show an exemption from liability by virtue of compliance with either OCGA § 7-3-29 (c) or (d). Subsection (c) requires that within fifteen days after discovering an error or violation and prior to the institution of an action under the code section or receipt of written notice of the error or violation, the lender notifies the person concerned and makes necessary adjustments to ensure that person will not be required to pay charges in excess of those permitted. Subsection (d) requires that the lender show by a preponderance of the evidence that the violation was unintentional and “resulted from bona fide clerical or typographical error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.”
No evidence was offered concerning the time of discovery which would sustain any finding with regard to OCGA § 7-3-29 (c). Therefore, the burden was on the plaintiff to establish by a preponderance of the evidence that it complied with OCGA § 7-3-29 (d).
It should be noted that OCGA § 7-3-29 (d) tracks exactly the language of former 15 USCA § 1640 (c). Construing that section we held in Martin v. Glenn’s Furniture Co., 126 Ga. App. 692, 698 (191 SE2d 567) (1972): “This section places the burden on the creditor and in effect means that when a violation is shown the debtor has a prima facie right to recover.” In Liberty Loan Corp. v. Childs, 140 Ga. App. 473, 476 (231 SE2d 352) (1976), this Court held the charging of usurious interest occurred where the creditor demanded such interest by suit and that an amendment to its complaint did not erase the violation. For similar reasoning see Reese v. Termplan, Inc., Bolton, 125 Ga. App. 473, 475 (188 SE2d 177) (1972), and Harrison v. Goodyear Svc. Stores, 137 Ga. App. 223, 224 (223 SE2d 261) (1976), cases involving the Retail Installment Sales Act (Ga. Laws 1967, p. 659 et seq.).
In order to meet the requirements of OCGA § 7-3-29 (d), the plaintiff introduced evidence that the violation was not intentional and resulted from a clerical error. However, there was no proof to sustain the vital element that the error resulted “notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.”
Because the plaintiff did not meet its burden of establishing an exemption under OCGA § 7-3-29 (d), the judgment ought to be reversed with regard to the defendant’s claim for a penalty under that section.
I am authorized to state that Chief Judge Banke joins in this dissent.
*316Decided March 15, 1985 Rehearing denied March 29, 1985 Ralph S. Goldberg, for appellant. David G. Crockett, for appellee. Paul E. Kauffman, Phyllis Holmen, John Cromartie, amici curiae.