Livingston v. Fast Cash USA, Inc.


ATTORNEYS FOR PLAINTIFFS:                    ATTORNEYS FOR DEFENDANTS:


STEPHEN L. WILLIAMS                          JUDY L. WOODS

Mann Law Firm                                Bose McKinney & Evans LLP
Terre Haute, Indiana                               Indianapolis, Indiana


DAVID H. POPE                                JAMES A. CHAREQ

Carr Tabb Pope & Freeman                           Lovells
Atlanta, Georgia                             Washington, DC


CLIFFORD W. SHEPARD                          ATTORNEYS FOR AMICUS CURIAE

Consumer Law Protection Offices
Indianapolis, Indiana                              STEVEN C. SHOCKLEY
                                             MAGGIE L. SMITH

DANIEL A. EDELMAN                            Sommer & Barnard, PC

Edelman Combs & Latturner                          Indianapolis, Indiana
Chicago, Illinois



                                   IN THE

                          SUPREME COURT OF INDIANA


LIVINGSTON, JANET, ET AL.,              )
                                        )
      Plaintiffs,                            )
                                        )    Supreme Court Cause Number
            v.                          )
                                        )    94S00-0010-CQ-609
FAST CASH USA, INC., ET AL.,            )
                                        )
      Defendants.                            )
                                        )
----------------------------------------------------------------------------
------------------------------------
                                        )
WALLACE, KELLI R., ET AL.,              )
                                        )
      Plaintiffs,                            )
                                        )    Supreme Court Cause Number
            v.                          )
                                        )    94S00-0010-CQ-610
ADVANCE AMERICA CASH              )
ADVANCE CENTERS OF INDIANA,       )
                                        )
                     Defendants.                                           )


        CERTIFIED QUESTION FROM THE U.S. DISTRICT COURT, NORTHERN and
                        SOUTHERN DISTRICTS OF INDIANA
Cause Nos. IP-99-1226-C(B/S), IP 99-1887-C(B/S); IP-00-45-C(D/S);  IP-00-46-
C(T/S); IP-00-60-C(B/S)
 IP-00-121-C(H/S);IP-00-122-C(Y/S); IP-00-137-C(H/S); IP-00-138-C(B/S); IP-
 00-163-C(M/S); IP-00-165-C(T/S); IP-00-166-C(H/S); IP-00-339-C(H/S); IP-00-
676-C(H/S); IP-00-902-C(H/S); IP-00-903-C(H/S); IP-00-957-C(B/S); IP-00-964-
              C(B/S); IP-00-1001-C(H/S); IP-00-1101-C(H/S); and
                               TH-00-32-C(M/S)

     Cause Nos.  2:00cv0123AS; 2:00cv0179AS; 2:00cv0189AS; 2:00cv0313AS;
    2:00cv0388AS; 3:00cv0070AS; 3:00cv0072AS; 3:00cv0077AS; 3:00cv0259AS;
  3:00cv0724AS; 1:00cv0101AS; 1:00cv0102AS; 1:00cv0181AS; 1:00cv0276AS; and
                                1:00cv0314AS.

                             CERTIFIED QUESTION

                               August 16, 2001

RUCKER, Justice

                                Case Summary

      This cause comes to us as a certified question from the United  States
District Courts for the  Southern  District  of  Indiana,  Indianapolis  and
Terre Haute Divisions, and for the Northern  District  of  Indiana,  Hammond
Division.   Pursuant  to   Indiana   Appellate   Rule   64,   which   allows
certification of questions of Indiana law for consideration by  this  Court,
we have accepted the  following  question:   is  the  minimum  loan  finance
charge permitted by Indiana Code section 24-4.5-3-508(7), when charged by  a
licensed supervised lender, limited by Indiana Code section  24-4.5-3-508(2)
or Indiana Code section 35-45-7-2.  The answer is yes.

                        Facts and Procedural History

      The certified question arises  from  numerous  cases  pending  in  the
federal courts.  A majority of the defendants are lenders  who  are  in  the
business  of  making  small,  short-term,  single-payment,  consumer   loans
generally referred to  as  “payday”  loans.   Some  of  the  defendants  are
collection agencies or  attorneys  who  do  not  make  loans  but  represent
lenders in actions to collect from borrowers who  have  defaulted  on  their
loan obligations.[1]  The loan amounts range from $50  to  $400  and  extend
for a period of less than thirty days.  Lenders contract for and receive  as
a finance charge an amount equal to or less than the  minimum  loan  finance
charge permitted by Indiana Code section  24-4.5-3-508(7).   Plaintiffs  are
persons who have obtained loans from one or more Lenders.
      Although the details vary from person to person as well as from lender
to lender, typically a payday loan works as follows.   The borrower  applies
for a small loan and gives the lender a post-dated check in  the  amount  of
the loan principal plus a finance charge.   Depending  on  the  lender,  the
finance charge varies from $15 to $33.  In  return,  the  lender  gives  the
borrower a loan in cash with payment due in a short period of time,  usually
two weeks.  When the loan  becomes  due,  the  borrower  either  repays  the
lender in cash the amount of the  loan  plus  the  finance  charge,  or  the
lender deposits the borrower’s check.   If  the  borrower  lacks  sufficient
funds to pay the loan when due, then the borrower may obtain a new loan  for
another two weeks incurring another finance charge.
      Acting on behalf of themselves and  a  putative  class  of  borrowers,
plaintiffs allege that Lenders violated Indiana law by contracting  for  and
receiving the minimum loan finance charge permitted by Indiana Code  section
24-4.5-3-508(7) when the finance charge exceeded the 36%  annual  percentage
rate (“APR”) specified in Indiana Code section 24-4.5-3-508(2)  or  the  72%
APR specified in Indiana Code section 35-45-7-2.  Each of the cases  pending
in the Southern District of Indiana has been  stayed  pending  this  Court’s
determination  of  the  certified  question.   The  cases  in  the  Northern
District of Indiana have  been  dismissed  without  prejudice  pending  this
Court’s determination.

                                 Discussion

      The 1968 Uniform Consumer Credit Code was originally adopted  by  this
State’s Legislature in 1971 and  is  referred  to  as  the  Indiana  Uniform
Consumer  Credit  Code  (“IUCCC”).   Rates  on  loan  finance  charges   for
supervised loans[2] are governed by  Indiana  Code  section  24-4.5-3-508(2)
and minimum loan finance charges[3] are governed by Indiana Code section 24-
5-3-508(7).  More specifically, subsection  3-508(2)  provides  in  relevant
part:
      The loan finance charge, calculated according to the actuarial method,
      may not exceed the equivalent of the greater of the following: []  the
      total of [] thirty-six percent (36%) per year  on  that  part  of  the
      unpaid balances of the principal which is three hundred dollars ($300)
      . . . .


In turn, subsection 3-508(7) dictates in relevant part:
      With respect to a supervised loan not made  pursuant  to  a  revolving
      loan account, the lender may contract for and receive a  minimum  loan
      finance charge of not more than thirty dollars ($30).[4]

The parties agree that a fifteen-day  loan  of  $200  with  a  minimum  loan
finance  charge  of  $33  represents  an  APR  of  interest  totaling  402%.
However, according to  Lenders,  subsection  3-508(7)  is  an  exception  to
subsection 3-508(2).  Relying on various tenets  of  statutory  construction
Lenders contend they are entitled to receive from a borrower a minimum  loan
finance charge in any amount up to  $33  even  if  the  charge  exceeds  the
maximum APR of 36%.  We  rely  on  similar  tenets  but  reach  a  different
conclusion.
      Where a  statute  has  not  previously  been  construed,  the  express
language of the  statute  controls  the  interpretation  and  the  rules  of
statutory construction apply.  Ind.  State  Fair  Bd.  v.  Hockey  Corp.  of
America, 429 N.E.2d 1121, 1123 (Ind. 1982).  We are  required  to  determine
and effect the legislative intent underlying the  statute  and  to  construe
the statute in such a way as to prevent absurdity and hardship and to  favor
public convenience.  Superior Constr. Co.  v.  Carr,  564  N.E.2d  281,  284
(Ind. 1990).  In so doing, we should consider the objects  and  purposes  of
the  statute  as  well  as  the  effects  and  repercussions  of   such   an
interpretation.  State v. Windy City Fireworks, Inc., 600  N.E.2d  555,  558
(Ind. Ct. App. 1992), adopted by 608 N.E.2d 699.
      Before the 1971 adoption of the IUCCC,  the  Indiana  Legislature  had
passed an array of lending and usury laws.  Replaced by the IUCCC, many  had
been in existence before the turn of  the  century.[5]   One  such  statute,
commonly referred to as the “petty loan” statute, was specifically  designed
to “provide for a limited and uniform rate of interest upon small loans  for
short terms.”  Cotton v. Commonwealth Loan Co., 206 Ind. 626, 190 N.E.  853,
855 (1934); Pub.L. No. 167-1913, §§ 1-5,  1913  Ind.  Acts  457-60.   Unlike
most lending statutes for which interest rates were generally  based  on  an
annual rate, the petty loan statute differed in  that  it  was  based  on  a
monthly rate.  Cotton,  190  N.E.  at  855  (discussing  the  then  existing
interest rate of 3½% per month  for  loans  up  to  $300).   With  the  1971
enactment of the IUCCC, the legislature retreated from  a  monthly  rate  of
interest and instead set the interest rate at 36%  per  year  for  loans  of
$300 or less.  See I.C. § 24-4.5-3-508(2)(a)(i); Pub.L. No. 366-1971,  §  4,
1971 Ind. Acts 1637-38.  Of course,  with  this  change  nothing  prohibited
lenders from continuing to provide “small loans for short  terms.”   Cotton,
190  N.E.  at  855.   However,  the  statute  suggests  that  although   the
legislature apparently contemplated the continued existence of small  loans,
consistent with its stated purpose “to simplify, clarify and  modernize  the
law governing retail installment sales, consumer  credit,  small  loans  and
usury,”  I.C.  §  24-4.5-1-102(2)(a)  (emphasis  added),   the   legislature
anticipated that even though small, the loans would extend for at least  one
year.  Subsection 3-508(3)(b) lends support to the view that the then  newly
enacted IUCCC anticipated longer term  loans.   That  subsection  refers  to
“prepayment” which in turn is controlled by Indiana Code  section  24-4.5-3-
210.  We observe that a one or two-week payday loan is not very amenable  to
a prepayment scheme.
      The early version of subsection 3-210 also supports the view that  the
IUCCC anticipated loans for  longer  than  a  week  or  two.   In  1971  for
example, in the case of prepayment for a loan in excess  of  $75,  a  lender
was allowed to receive a minimum loan finance charge  provided  it  did  not
exceed $7.50 or the finance charge contracted for.  See I.C. §  24-4.5-3-210
(1971).  Thus a $200 two-week loan would generate $2.77 in  interest,  i.e.,
“the finance charge contracted for.”   It  would  have  been  more  than  an
anomaly if a lender were allowed to receive a minimum  loan  finance  charge
of $2.77 for a two-week loan paid at the end of the term but  receive  $7.50
as a minimum loan finance charge if that same two-week loan were paid off  a
week early.
      Subsection 3-508 has been amended three times  since  1971.   However,
each  amendment  has  referred  to  the  prepayment  subsection  3-210.   At
present,  subsection  3-508   as   well   as   subsection   3-210[6]   works
substantially the same as it has always worked:   a  lender  is  allowed  to
charge up to the amount specified in subsection  3-508(7),  limited  by  the
total finance charge that was  originally  provided  for  in  the  contract.
Hence, a two-week $200 loan still generates $2.77 in maximum interest.   The
principal difference between the 1971 version of subsection  3-508  and  the
current version is that the minimum loan  finance  charge  is  now  $33  for
loans up to  $300.   If  subsection  3-508(7)  represents  an  exception  to
subsection 3-508(2), as Lenders contend, then  there  would  exist  an  even
greater anomaly today than that which would  have  existed  under  the  1971
version of the statute.  Specifically, if Lenders  are  correct,  then  they
would be entitled to receive $2.77 for a two-week loan paid at  the  end  of
the term, but entitled to an incredible $33 if the two-week loan  were  paid
off early, for example after a week or  even  one  day.   To  interpret  the
statute as Lenders suggest - allowing a minimum finance charge of $33 for  a
loan that otherwise would generate what amounts to pennies in interest -  is
inconsistent with the purposes and policies of  the  IUCCC  and  creates  an
absurd result which  the  legislature  could  not  have  intended  when  the
statute was enacted or when the various amendments were adopted.
      Lenders complain that reading the statute inconsistent with their  own
interpretation either renders subsection 3-508(7) a nullity or treats it  as
mere surplusage.  We disagree.  Subsection  3-508(7)  would  be  rendered  a
nullity or mere surplusage only  if  subsection  3-508(2)  can  be  read  as
anticipating short term loans.  As we have attempted to demonstrate,  we  do
not believe that is the case.  In essence these statutes simply do not  work
very well when applied  to  short-term  payday  type  loans.   By  contrast,
subsections 3-508(2) and (7) work together  harmoniously  for  loans  of  at
least a year.  For example, a $200 one-year loan would  entitle  the  lender
to $72 in interest if the loan were paid at the end of  the  term.   In  the
event of prepayment - even after one day - the lender would be  entitled  to
a minimum loan finance charge of $33.   This  seems  to  make  sense.   Even
though the lender would not receive the full amount of  interest  originally
anticipated, the lender is still afforded a modest but reasonable return  on
an investment and also allowed to  recoup  administrative  costs  associated
with setting up a small loan.  Only because Lenders  have  made  a  business
decision to offer short-term payday loans are  they  faced  with  a  dilemma
which in their view justifies a $33 minimum loan finance charge.  See  Reply
Br. of  Def.  at  6  (complaining  “annual  rates  of  interest  do  no  not
adequately compensate the  lender.”).   This  Court  can  offer  Lenders  no
refuge.  Even if short term payday loans  were  never  contemplated  by  the
IUCCC, they are nonetheless subject  to  and  controlled  by  that  statute.
Accordingly, Lenders may contract for and receive a loan finance  charge  of
not more  than  $33  as  set  forth  in  subsection  3-508(7)  provided  the
resulting APR does not exceed the interest limit established by 3-508(2)  or
Indiana’s loansharking statute.[7]

                                 Conclusion


      We conclude that the minimum loan finance charges for supervised loans
provided for in Indiana Code section  24-4.5-3-508(7)  are  limited  by  the
maximum 36%  APR  allowed  in  Indiana  Code  section  24-4.5-3-508(2).   We
further conclude that minimum loan  finance  charges  for  supervised  loans
provided for in Indiana Code section 24-4.5-3-508(7)  are  limited  also  by
Indiana Code section 35-45-7-2.

DICKSON and SULLIVAN, JJ., concur.

BOEHM, J., concurs with separate opinion.

SHEPARD, C.J., dissents with separate opinion.
ATTORNEYS FOR PLAINTIFFS

Stephen L. Williams
Terre Haute, Indiana

David H. Pope
Atlanta, Georgia

Clifford W. Shepard
Indianapolis, Indiana

Daniel A. Edelman
Chicago, Illinois


ATTORNEYS FOR DEFENDANTS

Judy L. Woods
Indianapolis, Indiana

James A. Chareq
Washington, D.C.

ATTORNEYS FOR AMICUS
CURIAE

Steven C. Shockley
Maggie L. Smith
Indianapolis, Indiana

_________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

LIVINGSTON, JANET et al.,         )
                                  )
      Plaintiffs,                  )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 94S00-0010-CQ-609
FAST CASH USA, INC. et al.,       )
                                  )
      Defendants.                       )


  CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
                             DISTRICT OF INDIANA
 Cause Nos. IP-99-1226-C(B/S), IP 99-1887-C(B/S): IP-00-45-C(D/S): IP-00-46-
   C(T/S): IP-00-60-C(B/S):IP-00-121-C(H/S): IP-00-122-C(Y/S): IP-00-137-
  C(H/S): IP-00-138-C(B/S): IP-00-163-C(M/S): IP-00-165-C(T/S): IP-00-166-
  C(H/S): IP-00-339-C(H/S): IP-00-676-C(H/S): IP-00-902-C(H/S): IP-00-903-
 C(H/S): IP-00-957-C(B/S): IP-00-964-C(B/S): IP-00-1001-C(H/S): IP-00-1101-
                         C(H/S): and TH-00-32-C(M/S)

_________________________________
WALLACE, KELLI R. et al.,         )
                                  )
      Plaintiffs,                       )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 94S00-0010-CQ-610
ADVANCE AMERICA CASH         )
ADVANCE CENTERS OF INDIANA,  )
                                  )
      Defendants.                       )

  CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
                             DISTRICT OF INDIANA
     Cause Nos. 2:00cv0123AS: 2:00cv0179AS: 2:00cv0189AS: 2:00cv0313AS:
    2:00cv0388AS:3:00cv0070AS: 3:00cv0072AS: 3:00cv0077AS: 3:00cv0259AS:
  3:00cv0724AS: 1:00cv0101AS:1:00cv0102AS: 1:00cv0181AS: 1:00cv0276AS: and
                                1:00cv0314AS.
__________________________________________________________________


                             CERTIFIED QUESTION

__________________________________________________________________



                               August 16, 2001



BOEHM, Justice, concurring.
      I agree with the majority’s answer to the certified question.  I offer
additional support for  their  answer.   In  capsule  form,  the  plaintiffs
contend that the  provision  in  subsection  508(7)1  permitting  a  minimum
finance charge of $33 per loan does not  apply  to  a  payday  loan  if  the
loan’s annual interest rate  exceeds  the  APR  permitted  under  subsection
508(2).  The “Payday Lenders” respond  that  this  view  renders  subsection
508(7) surplusage.  The plaintiffs counter that claim by
saying that subsection 508(7) permits  collection  of  a  minimum  $33  loan
finance charge in the case of a prepaid loan, assuming the loan  was  for  a
time period for which a $33  loan  finance  charge  would  be  lawful  under
subsection 508(2), but does not validate a minimum charge that is in  excess
of the subsection 508(2) limits calculated over  the  initial  term  of  the
loan.
      As I see it, the issue is whether the $33 minimum loan finance  charge
provided by subsection 508(7) is collectible if it exceeds the loan  finance
charge allowed under subsection 508(2) for the loan as written for its  full
term.  I think  it  is  not.   If  a  loan  is  prepaid,  subsection  210(2)
authorizes the collection  of  the  “minimum  loan  finance  charge,  as  if
earned, not exceeding the loan finance  charge  contracted  for.”   In  this
context, I take “as if earned” to mean the loan charge prorated to the  date
of prepayment.  Similarly, the  “loan  finance  charge  contracted  for”  in
subsection 210(2) is the  amount  of  loan  finance  charge  that  would  be
collected if the loan were held to  its  full  term.   That  amount,  for  a
“supervised loan,” is capped by subsection 508(2).  Thus, in the  prepayment
context,  the  minimum  charge  is  capped  by  the  “loan  finance   charge
contracted for,” and the  full  $33  cannot  lawfully  be  collected  if  it
exceeds that amount.
      Given this limitation in the prepayment of a loan that is  within  the
allowable finance charges, it would be more than  anomalous  to  permit  the
full $33 to be collectible in the case of a  loan  that  carries  a  finance
charge vastly in excess of the allowable charges.   By  way  of  example,  a
lender who makes a $100 loan for six months  may  lawfully  collect  a  loan
finance charge of $18 when the loan is repaid in full at the end of the six-
month term ($18 is 36% per annum  on  $100  for  one  half  year).   Because
subsection 210(2) limits the prepayment minimum charge to “the  loan  charge
contracted for,” only $18—not the $33 minimum charge provided in  subsection
508(7)—is collectible if this loan is prepaid,  say  at  three  months  when
only $9 is  “earned.”   The  payday  lender  nevertheless  contends  it  can
collect $33 for a two-week loan of the same amount.  This  result  seems  to
fly in the face of the statutory scheme.
      Another way to make the same point  is  to  say  that  subsection  210
provides for recovery of a minimum charge on prepayment even if that  charge
exceeds the initially contracted charge prorated to the date of  prepayment.
 Subsection 508(7) sets the amount of the minimum charge, but  it  does  not
constitute an independent exception to  the  limits  imposed  by  subsection
508(2) on the loan charge authorized in the loan to full term.  Simply  put,
I agree with the Court that the  Uniform  Consumer  Credit  Code  (UCCC)  is
based on an assumption,  but  it  is  not  the  assumption  that  loans  are
necessarily for at least one year.  Rather, I think the legislation  assumes
lawful loans, i.e. it assumes a lender cannot initially contract for a  loan
finance charge greater than the limits imposed by subsection 508(2).
      Although this line of reasoning is less  than  fully  clear  from  the
language of the statute, I think it is the only sensible way to  read  these
intertwined provisions.  First, it is notable that  subsection  508(2)  does
not provide that the loan finance charge may be “the greater of the  minimum
finance charge” or the  percentages  allowed  under  (a)  and  (b)  of  that
subsection.  If it meant what the lenders contend in this case,  that  would
be a much simpler  way  to  provide  a  fixed  dollar  minimum  loan  charge
irrespective of the term or amount of the loan.  But subsection 508(2)  does
not do that.  Rather, it allows the loan finance charge to be  “the  greater
of” the percentages in (a) or (b).  Separately, subsection  508(7)  provides
the amount of the minimum charge, in the case of a  supervised  loan,2  that
is then incorporated into the provisions of subsection 210(2)  dealing  with
prepayment.
      The only conclusion I can reach from this is that the court  is  quite
clearly correct in concluding that payday loans  were  not  contemplated  at
all by the drafters of the IUCCC.  This view of the structure of the act  is
fully consistent with the history of consumer  credit  legislation  outlined
by the majority.  In oversimplified terms,  the  legal  environment  of  the
1960s did not contemplate the revolving credit lines that are  now  familiar
to everyone and form the basis  of  the  credit  cards  most  consumers  use
routinely.  Usury laws, small loan acts and  similar  legislation  presented
significant legal issues to credit forms that, although  very  useful  to  a
consumer economy, require more than 8% simple interest charges  and  do  not
fit into fixed payment schedules.  The UCCC and  its  Indiana  version  were
drafted to address these emerging forms of consumer finance.   They  assumed
the problems of that day and assumed transactions in the then  known  forms,
but they did not  contemplate  doing  away  altogether  with  regulation  of
excessive charges.
      Subsection 508(7)—the provision the defendants rely on—has been in the
IUCCC  since  1982.   Its  function—to  permit  recovery  of  initial   loan
processing  costs  in  case  of  prepayment—is   perfectly   plausible   and
consistent with the overall scheme of  the  statute.   We  are  told  payday
loans first appeared in this state in 1994.  That  fortifies  my  view  that
the statute assumes that a loan will be written in compliance with the  loan
finance charge limits of subsection 508(2), and  that  the  minimum  charges
will be  allowed  only  to  the  extent  they  do  not  exceed  the  amounts
collectible under a lawful loan held to full term.
      My confidence in this reading is bolstered because I think  the  logic
of the defendants’ position produces demonstrably absurd results.  The  same
arguments advanced to justify a $33 minimum charge for a  two-week  loan  of
$100 equally justify a $33 charge for a two-minute loan of $1.  I find  that
result clearly not within the contemplation of the legislature.  There  must
be a bright line between permissible and  impermissible  lending  practices.
The only line that seems to me to make sense, and the only one suggested  by
the statute itself, is the one plaintiffs propose: the initial term  of  the
loan must be sufficient to support the minimum charge  consistent  with  the
limitations of subsection 508(2).
      It also seems to me that the justifications offered by payday  lenders
do not hold water.  The costs of setting a loan up on  the  lender’s  books,
etc., are cited as the basis for a minimum charge.  This makes sense in  the
context of a loan that is initially contemplated to carry a  finance  charge
allowed by subsection  508(2).   But  ease  of  making  the  loan,  lack  of
paperwork, and the lender’s assumption of credit risk are cited as  economic
reasons  justifying  payday  loans.   These  justifications   are   somewhat
inconsistent with those offered to explain the minimum charge in  the  first
place.  To return to the two-minute loan of  $1,  presumably  that  business
would be highly  profitable  despite  the  large  uncollectible  receivables
generated by assumption of any and all credit risks and  extremely  informal
lending practices.  At that rate of return a  prudent  lender  would  shovel
money out the door as fast as it could and hope for the best  on  the  costs
of business represented by default rates, credit risks, poor  documentation,
etc.  Although that example is unrealistic,  the  payday  lending  practices
seem only quantitatively, not qualitatively, different  from  this  extreme.
The rates charged by the lender  here—hundreds  of  percent  per  year—would
seem to justify the same willy nilly lending.
      Finally,  defendants  point  to  the  traditional  arguments   against
regulation and in  favor  of  free  election  of  choices  afforded  in  the
marketplace.  But it seems clear to me that the legislature  has  chosen  in
the IUCCC to prohibit some lending practices and to  restrict  the  parties’
ability to contract for whatever is agreed.  In  short,  it  is  very  clear
that some forms of lending practices are prohibited, and the  only  question
is whether payday loans are among the practices proscribed by  the  statute.
For the reasons given  above,  I  conclude  they  are.   I  agree  that  the
“multiple contracts” provision referred to by the Chief Justice may also  be
relevant to the ultimate issues in this case, but because the federal  court
declined to certify that question, I express no view as to it.




ATTORNEYS FOR PLAINTIFFS                ATTORNEYS FOR DEFENDANTS

Stephen L. Williams                     Judy L. Woods
Mann Law Firm                           Bose McKinney & Evans LLP
Terre Haute, Indiana              Indianapolis, Indiana

David H. Pope                           James A. Chareq
Carr Tabb Pope & Freeman                Lovells
Atlanta, Georgia                  Washington, D.C.

Clifford W. Shepard                     ATTORNEYS FOR AMICUS CURIAE
Consumer Law Protection Offices
Indianapolis, Indiana             Steven C. Schockley
                                        Maggie L. Smith
Daniel A. Edelman                       Sommer & Barnard, PC
Edelman Combs & Latturner         Indianapolis, Indiana
Chicago, Illinois





                                   IN THE

                          SUPREME COURT OF INDIANA



LIVINGSTON, JANET, ET AL.,        )
                                        )
      Plaintiffs,                       )
                                        )    Supreme Court Cause
           v.                                    )                   Number
                                  )     94S00-0010-CQ-609
FAST CASH USA, INC. ET AL.,       )
                                        )
      Defendants.                       )
-----------------------------------------------------------
                                        )
WALLACE, KELLI R., ET AL.,        )
                                        )
      Plaintiffs,                       )
                                        )    Supreme Court Cause
            v.                          )          Number
                                        )    94S00-0010-CQ-610
ADVANCE AMERICA CASH and                )
ADVANCE CENTERS OF INDIANA,       )
                                        )
      Defendants.                       )







   CERTIFIED QUESTION FROM THE U.S. DISTRICT COURT, NORTHERN and SOUTHERN
                            DISTRICTS OF INDIANA



                               August 16, 2001


SHEPARD, Chief Justice, dissenting.


      I read subsection 508(7) to mean  what  it  says,  in  straightforward
terms:  “With respect to a supervised loan not made pursuant to a  revolving
loan account, the lender  may  contract  for  and  receive  a  minimum  loan
finance charge of not more than thirty dollars ($30).”1



      I think subsection 508(2)  limiting  annual  interest  and  subsection
508(7) permitting a minimum finance charge were adopted by  the  legislature
on the premise that the two would work together like  this:   a  lender  can
charge no more than 36% per year, but if the loan period is so short or  the
loan so small that this rate might produce just a few dollars, a minimum  of
$33 may be charged.  This harmonizes both provisions by

treating subsection 508(7) as an exception  to  subsection  508(2),  and  it
makes $33 a true “minimum loan finance charge” using the common  meaning  of
the words.




      The majority concludes that subsection 508(7) comes into play only  in
the event of loan prepayments, because it is referenced in  §  210  (“Rebate
Upon Prepayment”).  Although subsection 508(7) does perform this  additional
function, I still find its primary purpose in its plain  language.   If  the
legislature had intended to permit a minimum loan finance charge  but  limit
it to prepayment situations, surely the logical approach would have been  to
state the  minimum  charge,  in  dollars,  in  the  prepayment  section  and
eliminate  subsection  508(7)  entirely,  or  at  least  to   clarify   this
limitation in subsection 508(7).


      This is not to say that the legislature contemplated allowing  lenders
to collect $33 every two weeks on what is for  all  practical  purposes  one
continuing  loan.   Lawmakers  probably  recognized  that  they  could   not
anticipate all possible schemes and adopted a  general  provision  aimed  at
preventing such possibilities.  Ind. Code § 24-4.5-3-509, “Use  of  Multiple
Agreements,”  prohibits  lenders  from  permitting  borrowers   to   “become
obligated in any way under more than one loan agreement with the lender .  .
. with intent to obtain a higher rate of  loan  finance  charge  than  would
otherwise be permitted by the  provisions  on  loan  finance  charge[s]  for
supervised loans . . . .”  This provision effectively  prohibits  sequential
fee-charging practices.


      It has been awhile since we last encountered a statute in such serious
need of revision.  Our federal cousins might take comfort in  knowing  that,
like them, we  found  the  task  of  parsing  its  various  provisions  very
difficult (but had nowhere else to send out for help).






-----------------------
      [1]  For ease of reference we refer to all defendants collectively  as
“Lenders.”
      [2]  A “supervised loan” is defined as a “consumer loan in  which  the
rate of the loan finance charge exceeds twenty-one percent (21%)  per  year.
. . .”  Ind. Code § 24-4.5-3-501(1).

      [3]  In relevant part,  “loan  finance  charge”  is  defined  as  “all
charges payable directly or indirectly by the debtor  and  imposed  directly
or indirectly by the lender as an incident to the extension of credit.  .  .
. ”  I.C. § 24-4.5-3-109(1)(a).

      [4]  Since 1994, the minimum loan finance charge has been  subject  to
bi-annual indexing on July 1 of even numbered years  and  thus  is  adjusted
automatically once every two years.  I.C. § 24-4.5-3-508(6); I.C. §  24-4.5-
1-106.  The current minimum loan finance charge is $33.

      [5]  See Pub.L. No. 125-1917,  §  2,  1917  Ind.  Acts  404  (allowing
lenders of “small loans” to charge 3½%  interest  per  month  on  loans  not
exceeding $300); I.C. ch. 80, § 7043 (1901) (allowing interest  rate  of  up
to 6% per year in absence of written agreement and up to 8% per  year  if  a
written agreement exists); I.C. ch. 74, § 5198 (1888) (same); I.C. ch. 5,  §
1 (1870) (capping interest rate chargeable to a borrower by a lender  at  6%
per year); I.C. ch. 57, § 1 (1852) (same); I.C. art. 3, § 25 (1843) (same).

      [6]  The statute provides in relevant part:


      Upon  prepayment  in  full  of  a  consumer  loan,   refinancing,   or
      consolidation, other than one (1) under a revolving loan  account,  if
      the loan finance charge earned is less than any permitted minimum loan
      finance  charge  (IC  §  24-4.5-3-2-1(6)  or  IC  §   24-4.5-3-508(7))
      contracted for,  whether  or  not  the  consumer  loan  financing,  or
      consolidation is precomputed, the lender may  collect  or  retain  the
      minimum loan finance charge, as if  earned,  not  exceeding  the  loan
      finance charge contracted for.

I.C. § 24-4.5-3-210(2).
      [7]  The statute provides in relevant part:

      A person who, in exchange for the loan of any property,  knowingly  or
      intentionally receives or contracts to receive from another person any
      consideration, at a rate greater than two (2) times the rate specified
      in IC § 24-4.5-3-508(2)(a)(i), commits loansharking, a Class D felony.

I.C. § 35-45-7-2.
1 All statutory references are to Indiana Code 24-4.5-3.

2 Indiana Code subsection 24-4.5-3-201(6) supplies the minimum charge to  be
incorporated  into  subsection  210(2)  in  the  case  of  an   unsupervised
“consumer loan not made pursuant to a revolving loan account.”

1 This $30 amount is periodically adjusted  to  reflect  inflation,  as  the
majority explains, and is currently set at $33.