dissenting.
Plaintiff entered into a written fee agreement with defendant, which provided, in part:
“Client will be responsible for filing fees, court costs, costs of special reports, investigation and/or depositions, and witness fees. Such costs are payable in advance or upon billing by Attorney.” (Emphasis supplied.)
Plaintiffs bills included this paragraph at the bottom:
“A LATE PAYMENT CHARGE OF 11/2% PER MONTH, BUT NOT LESS THAN $1.00 WILL BE ADDED TO THE BALANCE DUE ON REGULAR AND DEFERRED AMOUNTS MORE THAN 30 DAYS OVERDUE.”
At no time did the parties enter an agreement allowing for partial payments on the account. When a dispute arose over the amounts due, plaintiff brought this action to collect the account. Nevertheless, under the majority’s interpretation, plaintiff still could have violated UDCPA and TILA. In reversing the trial court, the majority has misconstrued both acts. Accordingly, I dissent.
Although I agree that the present transaction falls within the scope of UDCPA, I disagree that defendant has alleged facts showing that plaintiff violated the act. The majority holds that filing a lawsuit knowing that the debt does not exist falls within the plain language of ORS 646.639(2)(k). Assuming that to be true, it is irrelevant the dispute here was not over the existence of the debt but over the correct amount owed on a professional services contract. Plaintiff has only initiated a legal process and carried it out to its authorized conclusion.
In any event, creditors pursue “a right or remedy with knowledge or reason to know that the right or remedy does not exist” when they engage in actions prohibited by a statute or an administrative rule in an attempt to collect a debt, Isom v. PGE, 67 Or App 97, 677 P2d 59, rev den 297 Or 272 (1984), or when they try to collect on a debt in an effort to gain some collateral advantage over the consumer, as in Rowe v. Bank of the Cascades, 68 Or App 490, 683 P2d 93 (1984). Neither Isom nor Rowe supports the broad holding of the majority in this case. If a creditor launches a purely malicious *425action to harass a debtor, then the debtor has a claim for wrongful use of civil process under ORS 30.895.1
Similarly, I believe that the trial court did not err in dismissing defendant’s counterclaim for TILA violations. This transaction falls outside the purview of TILA, because the charge described on the bottom of plaintiffs bill is a late payment charge, not a finance charge. The standards in the official staff commentary — standards on which the majority also relies — identify two factors for determining whether a charge is a late payment charge: First, when the account terms require the consumer to pay the account balance in full each month and, second, regardless of the terms of the account, if the creditor allows the consumer to pay the account over a period of time without demanding payment in full or taking other action to collect. 12 CFR § 226.4, Supp I. Plaintiff both demanded full payment in each monthly billing and brought this action to collect the account.
Nevertheless, the majority concludes that there is a reasonable inference that plaintiff gave defendant the option of either paying in full or paying in installments, subject to a monthly charge. Therefore, it says, the “late payment charge” could qualify as a finance charge under 12 CFR § 226.4. However, the majority fails to suggest what else plaintiff should have done. He entered into an agreement requiring defendant pay fees as they become due, sent out billings demanding full payment and brought an action on the account.
I dissent.
Such a claim would have been unavailable to defendant in this case, because it can only be brought in an original proceeding, as opposed to a counterclaim. ORS 30.895(3).