ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 108
(Senators Humphreys, Yoder, Grub, Walker,
Holliday, Wehrle, Chernenko, Blatnik and
Macnaughtan, original sponsors)
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[Passed April 10, 1993; in effect ninety days from passage.]
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AN ACT to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new
chapter, designated chapter forty-six-b; and to amend and
reenact section thirty-two, article three, chapter sixty-one
of said code, all relating to regulating the rental of
consumer goods under rent-to-own agreements; creating the
West Virginia consumer goods rental protection act; setting
forth the short title of the act; stating the scope or
application of the act; providing for the applicability of
the law of this state with respect to goods rented to a
resident of this state; setting forth legislative purpose
and intent; defining certain terms used throughout the act;
establishing a statute of frauds applicable to rental
agreements; limiting the enforcement of unconscionable
agreements; providing for the creation of express
warranties; establishing implied warranties of
merchantability and fitness for particular purpose;
prescribing the effect of any manufacturers' or supplier's
warranties and requiring the transfer of such warranties
under certain circumstances; prohibiting the disclaimer of
warranties and remedies; extending warranties to third-party
beneficiaries; allocating the risk of loss of consumer
goods; describing the effect of default under a rental
agreement and procedure to be followed upon default;
providing for notice after default; providing for the
termination of rent-to-own agreements; prescribing the terms
for reinstatement of written rental agreement; providing for
a consumer's right to ownership of the goods upon satisfying
certain conditions; requiring maintenance of goods; setting
forth disclosure requirements for rent-to-own transactions;
prohibiting certain acts by rent-to-own dealers;
establishing limitations on charges and fees; authorizing
the attorney general to promulgate legislative rules
governing rent-to-own transactions; prohibiting extortionate
conduct in rent-to-own transactions; prohibiting rebates or
discounts under certain conditions; prohibiting practice of
law by debt collectors; prohibiting collections through
threats or coercion; prohibiting oppression and abuse;
prohibiting unreasonable publication; prohibiting
fraudulent, deceptive or misleading representations;
prohibiting the use of unfair or unconscionable means bydebt collectors; prohibiting postal violations; requiring
notice of assignment; requiring receipts for payments;
providing for statements of account and evidence of payment
in full; requiring filing of notification with state tax
department; limiting the assignment of earnings; prohibiting
confession of judgment; prohibiting garnishment before
judgment; limiting garnishment; prohibiting discharge or
reprisal because of garnishment; establishing personal
property exemptions; authorizing service of process on
certain nonresidents; providing for enforcement of the act;
providing for injunctions against unconscionable agreements
and fraudulent or unconscionable conduct; authorizing civil
actions by the attorney general; defining certain criminal
offenses for the removal out of the county of property
securing a claim, the fraudulent sale or disposition of
personal property in possession by virtue of a lease or
secreting or converting property subject to a lease; and
making such proscribed conduct larceny of such property and
thus subject to the applicable criminal penalties therefor.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new
chapter, designated chapter forty-six-b; and that section thirty-
two, article three, chapter sixty-one of said code be amended and
reenacted, all to read as follows:
CHAPTER 46B. REGULATION OF THE RENTAL OF CONSUMER
GOODS UNDER RENT-TO-OWN AGREEMENTS.
ARTICLE 1. GENERAL PROVISIONS; PURPOSE AND INTENT; DEFINITIONS.
§46B-1-1. Short title.
This chapter shall be known and may be cited as the "West
Virginia Consumer Goods Rental Protection Act".
§46B-1-2. Scope.
This chapter applies to any transaction, regardless of form,
which creates a rental agreement for the rental of consumer
goods, unless such transaction is specifically exempted from the
application of this chapter by an express provision contained
herein.
§46B-1-3. Applicability of the law of this state.
With respect to consumer goods rented to a resident of this
state under a rent-to-own agreement, compliance and the effect of
compliance or noncompliance with the provisions of this chapter
are governed by the law of this state.
§46B-1-4. Legislative purpose and intent.
The underlying purposes and intent of this chapter are as
follows:
(1) To simplify and clarify the law governing contracts for
the rental of consumer goods;
(2) To assure an adequate means for consumers to enter into
contracts for the rental of consumer goods at an affordable
price, so that consumers are financially able to comply with the
terms of such contracts;
(3) To further consumer understanding of the terms of
agreements which involve the purchase or rental of consumer
goods;
(4) To foster competition among dealers or rent-to-own
dealers who supply consumer goods under rental agreements, so
that consumers may rent such consumer goods at a reasonable cost;
(5) To protect consumers against unfair practices by some
dealers, while having due regard for the interests of legitimate
and scrupulous dealers; and
(6) To permit and encourage the development and use of fair
and economically sound business practices on the part of dealers,
as well as promoting the practice of thrift and the exercise of
good judgment by consumers prior to their entering into
agreements for the purchase or rental of consumer goods.
§46B-1-5. General definitions.
The following words and phrases, when used in this chapter,
shall have the meanings respectively ascribed to them in this
section, unless the context in which such words or phrases are
used elsewhere in this chapter clearly requires a different
meaning:
(1) "Agricultural purpose" means a purpose related to the
production, harvest, exhibition, marketing, transportation,
processing or manufacture of agricultural products by a natural
person who cultivates, plants, propagates or nurtures the
agricultural products. "Agricultural products" include
agricultural, horticultural, viticultural and dairy products,
livestock, wildlife, poultry, bees, forest products, fish and
shellfish and any products thereof, including processed and
manufactured products, and any and all products raised or
produced on farms and any processed or manufactured productsthereof.
(2) "Consumer" means a natural person who acquires, or seeks
to acquire, the right to possession and use of consumer goods by
entering into a rent-to-own agreement with a dealer.
(3) "Consumer goods" or "goods" means goods intended to be
used primarily for personal, family or household purposes.
(4) "Damage waiver" means the voiding or disregard by the
dealer of any obligation on the part of the consumer to pay the
value of the consumer goods or to make payments pursuant to a
rent-to-own agreement in the event of loss or damage to the
consumer goods in excess of normal wear and tear or the insurance
of the value of the consumer goods or of payments pursuant to the
rent-to-own agreement in the event of loss or damage to the
consumer goods in excess of normal wear and tear.
(5) "Dealer" or "rent-to-own dealer" means a person who, in
the ordinary course of business, transfers or offers to transfer
the right to possession and use of consumer goods to a consumer
or acts as an agent to transfer or offer to transfer the right to
possession and use of consumer goods to a consumer, pursuant to
a rental agreement.
(6) "Debt collection" means any action, conduct or practice
of soliciting claims for collection or the collection of a claim
or claims owed or due or alleged to be owed or due to a dealer by
a consumer under a rent-to-own agreement.
(7) "Debt collector" means any person or organization
engaging directly or indirectly in debt collection. The term
includes any person or organization who sells or offers to sellforms which are, or are represented to be, a collection system,
device or scheme and are intended or calculated to be used to
collect claims.
(8) "Financial organization" means a corporation,
partnership, cooperative or association which:
(A) Is organized, chartered or holding an authorization
certificate under the laws of this state or of the United States
which authorizes the organization to make consumer loans; and
(B) Is subject to supervision and examination with respect
to such loans by an official or agency of this state or of the
United States.
(9) "Ownership" means the right to enjoy, possess and use
consumer goods to the exclusion of other persons, including the
right to transfer legal title to such consumer goods or to
otherwise control, handle or dispose of such consumer goods,
whether or not indicia of such ownership is established by, or
otherwise required to be evidenced by, a title-paper, letter,
receipt or other document or instrument.
(10) "Period" or "rental period" means a week, a month or
another specific length of time set forth in a rent-to-own
agreement, during which such period the consumer has a right to
continue possessing and using consumer goods, after having made
the periodic rental payment for such period.
(11) "Periodic payment" means a payment required to be made
by a consumer to have the right to possession and use of consumer
goods during a specified time period. The periodic payment does
not include any applicable sales, use, privilege, excise ordocumentary stamp taxes otherwise payable upon a transfer of
consumer goods from a dealer to a consumer, except as provided
for by the disclosure requirements or other applicable
requirements set forth in this chapter.
(12) "Person" or "party" includes a natural person or an
individual, an organization, partnerships and corporations.
(13) "Person related to" with respect to an individual
means: (A) The spouse of the individual; (B) a brother, brother-
in-law, sister or sister-in-law of the individual; (C) an
ancestor or lineal descendant of the individual or his spouse;
and (D) any other relative, by blood or marriage, of the
individual or his spouse who shares the same home with the
individual. "Person related to" with respect to an organization,
partnership or corporation means: (A) A person directly or
indirectly controlling, controlled by or under common control
with the organization, partnership or corporation; (B) an officer
or director of the organization, partnership or corporation or a
person performing similar functions with respect to the
organization or to a person related to the organization,
partnership or corporation; (C) the spouse of a person related to
the organization, partnership or corporation; and (D) a relative
by blood or marriage of a person related to the organization,
partnership or corporation shares the same home with him or her.
(14) "Premises" means a particular physical place of
business opened to the public by a dealer.
(15) "Rental agreement" means the bargain, with respect to
the rental of consumer goods under a rent-to-own agreement, ofthe dealer and the consumer as found in their language or by
implication from other circumstances including course of dealing
or usage of trade or course of performance as provided in this
chapter.
(16) "Rental contract" means the total legal obligation that
results from the rental agreement as affected by this chapter and
any other applicable rules of law.
(17) (A) "Rent-to-own agreement" means a rental agreement
which:
(i) Transfers the right to possession and use of the rental
property from the dealer to the consumer;
(ii) Obligates the consumer to pay successive periodic
rental payments as each shall become due, in order to continue
his or her right to possession and use of the rented consumer
goods;
(iii) Is subject to termination by the consumer as permitted
by this chapter, whereupon the consumer is not obligated to make
payments for any period of time other than a period during which
he or she chose to maintain possession and use of the rented
consumer goods;
(iv) Provides that upon compliance with the terms of the
agreement the consumer shall become or has the option to become
the owner of the property for no additional fee, except as
permitted by this chapter.
(B) The term "rent-to-own agreement" does not include a
rental agreement in which:
(i) A financial organization is a party, if the rentalagreement is subject to the federal Truth in Lending Act or the
federal Consumer Leasing Act and the regulations promulgated
pursuant thereto;
(ii) Any of the consumer goods which are the subject matter
of the rental agreement are vehicles as defined in section one,
article one, chapter seventeen-a of this code;
(iii) All of the consumer goods which are the subject of the
rental agreement are either two-way telecommunications equipment,
medical equipment or musical instruments, and the rental
agreement is subject to the federal Truth in Lending Act or the
federal Consumer Leasing Act and the regulations promulgated
pursuant thereto; or
(iv) All of the goods which are the subject matter of the
rental agreement are primarily intended to be used for
agricultural purposes.
(18) "Retail value" or "fair market value" of particular
consumer goods means the price at which goods of like type,
quality and quantity would change hands between a willing seller
and a willing buyer, at retail, for cash, in the particular
market area at the time of the rent-to-own rental agreement,
which price does not include any applicable sales, use,
privilege, excise or documentary stamp taxes payable upon the
transfer of such goods.
(19) "Rent-to-own charge", in connection with any
rent-to-own agreement, means the sum of all charges in excess of
the retail value which must be paid directly or indirectly by the
consumer in order for the consumer to acquire ownership of theconsumer goods without payment of further consideration.
(20) "Termination" means the cancellation of a rental
agreement when the consumer determines that he or she no longer
desires to pay periodic payments and retain the right to
possession and use of the consumer goods or either party puts an
end to the rental agreement for default by the other party in
accordance with the provisions of this chapter.
(21) "Total of payments" means the total of all periodic
payments specified in the written agreement which the consumer
must pay in order to acquire ownership of the consumer goods
without the payment of additional consideration to the dealer.
(22) "Willing buyer" means a person who:
(A) Buys consumer goods at retail for his or her personal
use or for the use of his or her family or household;
(B) Has a reasonable knowledge of the relevant facts to be
considered in ascertaining the fair market price of consumer
goods which are offered to be sold at retail; and
(C) Is under no compulsion to buy or to buy from a
particular seller.
(23) "Willing seller" means a person other than a
rent-to-own dealer who:
(A) In the ordinary course of business regularly sells or
offers for sale consumer goods at retail;
(B) Has no direct or indirect ownership connection with any
dealer;
(C) Has a reasonable knowledge of the relevant facts to be
considered in fixing the fair market price of consumer goodswhich are offered to be sold at retail; and
(D) Is under no compulsion to sell or to sell to a
particular buyer.
(24) "Written agreement" means a written document containing
or evidencing the terms of a rent-to-own transaction, reduced to
a tangible and legible form by printing, typewriting, computer
print-out or any other intentional reduction.
ARTICLE 2. FORMATION AND CONSTRUCTION OF AGREEMENTS FOR THE
RENTAL OF CONSUMER GOODS.
§46B-2-1. Statute of frauds.
(a) A rental agreement is not enforceable by a dealer by way
of action or defense unless there is a writing, signed by both
the dealer or his agent or employee and the consumer, sufficient
to indicate that a rent-to-own agreement has been made between
the parties, reasonably identifying and describing the consumer
goods to be rented. Any purported rent-to-own agreement entered
into without a written agreement may be voided by the consumer,
who may return the consumer goods and be refunded all amounts
previously paid to the dealer under the purported rental
agreement.
(b) A rental agreement is not enforceable by a dealer
against a consumer unless the written agreement contains all
disclosures required by the provisions of this chapter, and
unless a copy of the written agreement is delivered to the
consumer contemporaneously with the execution of the written
agreement. Any written agreement executed by a consumer which
does not comply with the requirements of this subsection may bevoided by the consumer.
(c) The fair market value for any single item which is the
subject of a rent-to-own agreement may not be more than ten
thousand dollars.
§46B-2-2. Unconscionability.
(a) If the court as a matter of law finds a rental agreement
or any clause of a rental agreement to have been unconscionable
at the time it was made, the court may refuse to enforce the
rental agreement, or it may enforce the remainder of the rental
agreement without the unconscionable clause, or it may so limit
the application of any unconscionable clause as to avoid any
unconscionable result.
(b) With respect to a consumer rental agreement, if the
court as a matter of law finds that a rental agreement or any
clause of a rental agreement has been induced by unconscionable
conduct or that unconscionable conduct has occurred in the
collection of a claim arising from a rental agreement, the court
may grant appropriate relief.
(c) Before making a finding of unconscionability under
subsection (a) or (b) of this section, the court, on its own
motion or that of a party, shall afford the parties a reasonable
opportunity to present evidence as to the setting, purpose and
effect of the rental agreement or clause thereof, or of the
conduct.
(d) In an action in which the consumer claims
unconscionability with respect to a rental agreement:
(1) If the court finds unconscionability under subsection(a) or (b) of this section, the court shall award reasonable
attorney's fees to the consumer.
(2) If the court does not find unconscionability and the
consumer claiming unconscionability has brought or maintained an
action he or she knew to be groundless, the court shall award
reasonable attorney's fees to the dealer against whom the claim
is made.
(3) In determining attorney's fees, the amount of the
recovery on behalf of the claimant under subsections (a) and (b)
of this section is not controlling.
§46B-2-3. Express warranties.
(a) Express warranties by the dealer are created as follows:
(1) Any affirmation of fact or promise made by the dealer to
the consumer which relates to the consumer goods is part of the
basis of the bargain and creates an express warranty that the
consumer goods will conform to the affirmation or promise;
(2) Any description of the consumer goods is part of the
basis of the bargain and creates an express warranty that the
consumer goods will conform to the description;
(3) Any sample or model exhibited to the consumer by the
dealer is part of the basis of the bargain and creates an express
warranty that the consumer goods actually delivered to the
consumer will conform to the sample or model.
(b) It is not necessary to the creation of an express
warranty that the dealer use formal words, such as "warrant" or
"guarantee", or that the dealer have a specific intention to make
a warranty, but an affirmation merely of the value of theconsumer goods or a statement purporting to be merely the
dealer's opinion or commendation of the consumer goods does not
create a warranty.
§46B-2-4. Implied warranty of merchantability.
(a) A warranty that the consumer goods will be merchantable
is implied in every contract for the rental of consumer goods if
the dealer is a merchant with respect to consumer goods of that
kind.
(b) Consumer goods to be merchantable must be at least such
as:
(1) Pass without objection in the trade under the
description in the rental agreement;
(2) Are fit for the ordinary purposes for which consumer
goods of that type are used; and
(3) Conform to any promises or affirmations of fact made on
the container or label.
(c) Other implied warranties may arise from course of
dealing or usage of trade.
§46B-2-5. Implied warranty of fitness for particular purpose.
If the dealer, at the time the rental contract is made, has
reason to know of any particular purpose for which the consumer
goods are required and that the consumer is relying on the
dealer's skill or judgment to select or furnish suitable consumer
goods, there is in the rental contract an implied warranty that
the consumer goods will be fit for that purpose.
§46B-2-6. Manufacturers' warranties; transfer of warranties.
When consumer goods that are subjects of a rent-to-owntransaction are warranted by a manufacturer's or supplier's
warranty or other warranty that may either be retained by the
dealer or transferred to the consumer, the warranty shall be
retained by the dealer so long as the dealer is responsible for
maintaining the consumer goods. At such time as maintenance of
the goods becomes the responsibility of the consumer through a
transfer of ownership or otherwise, such warranty shall be
transferred to the consumer. The dealer shall advise, orally and
in writing, the consumer of any manufacturer's or supplier's
warranty that may apply to the consumer goods and any details
regarding the warranty and the transfer of the warranty.
§46B-2-7. Disclaimer of warranties and remedies prohibited.
(a) Notwithstanding any other provision of law to the
contrary with respect to consumer goods which are the subject of
or are intended to become the subject of a rental
contract
subject to the provisions of this chapter, all warranties
available to the consumer, express or implied, are cumulative and
not exclusive, and the consumer shall have the benefit of any or
all such warranties. No dealer, manufacturer, supplier or other
merchant shall:
(1) Exclude, modify or otherwise attempt to limit any
warranty, express or implied, including the warranties of
merchantability and fitness for a particular purpose; or
(2) Exclude, modify or attempt to limit any remedy provided
by law, including the measure of damages available, for a breach
of warranty, express or implied.
(b) Any exclusion, modification or attempted limitation ofa warranty, express or implied, shall be void. Words or conduct
relevant to the creation of an express warranty and words or
conduct tending to negate or limit a warranty must be construed
as inconsistent with each other.
(c) It is unlawful in a rental contract subject to the
provisions of this chapter to attempt to exclude, modify or
otherwise attempt to limit any implied warranty of
merchantability or any part of it, or to attempt to exclude,
modify or otherwise attempt to limit any implied warranty of
fitness.
§46B-2-8. Third-party beneficiaries of express and implied
warranties.
A warranty to or for the benefit of a consumer under this
chapter, whether express or implied, extends to any natural
person who is in the family or household of the consumer or who
is a guest in the consumer's home if it is reasonable to expect
that such person may use or be affected by the consumer goods and
who is injured in person by breach of the warranty. This section
does not displace principles of law and equity that extend a
warranty to or for the benefit of a consumer to other persons.
The operation of this section may not be excluded, modified or
limited.
§46B-2-9. Risk of loss.
Risk of loss is retained by the dealer and does not pass to
the consumer
until such time as the consumer receives the goods.
ARTICLE 3. DEFAULT.
§46B-3-1. Default; procedure.
(a) Whether the dealer or the consumer is in default under
a rental contract is determined by the rental agreement and this
chapter.
(b) If the dealer or the consumer is in default under the
rental contract, the party seeking enforcement has rights and
remedies as provided in this chapter and, except as limited by
this chapter, as provided in the rental agreement.
(c) If the dealer or the consumer is in default under the
rental contract, the party seeking enforcement may reduce the
party's claim to judgment or otherwise enforce the rental
contract by self-help or any available judicial procedure or
nonjudicial procedure:
Provided, That consumer goods may only be
repossessed by a dealer without judicial process when such
repossession can be effected without a breach of the peace.
(d) Except as otherwise provided in this chapter or the
rental agreement, the rights and remedies referred to in
subsections (b) and (c) are cumulative.
§46B-3-2. Notice after default.
Except as otherwise provided in this chapter, the dealer or
consumer in default under the rental contract is not entitled to
notice of default or notice of enforcement from the other party
to the rental agreement.
§46B-3-3. Termination of rent-to-own agreements.
(a) Upon the termination of a rent-to-own agreement by a
consumer, all obligations that are still executory by both
parties are discharged, but any right based on a failure of the
dealer to maintain the consumer goods in accordance with theprovisions of section six of this article, or any other right
based on prior default or performance of the dealer survives, and
the consumer retains any remedy or defense for such default.
Rights and remedies available to the consumer for material
misrepresentation or fraud by a dealer are not affected by a
termination of the rental agreement by a consumer. Termination
of the rental agreement by a consumer shall not bar or be deemed
inconsistent with a claim for damages or other right or remedy.
(b) A consumer may terminate a rent-to-own agreement at any
time.
(c) When a consumer terminates a rent-to-own transaction,
the dealer may not require any further action or payment by the
consumer except:
(1) Payment of any unpaid periodic payments and charges
accrued before the consumer notified the dealer of the
termination of the transaction and made the consumer goods
available to be received by the dealer; and
(2) Payment of any pickup charge provided for in the rental
agreement.
(d) A dealer may terminate a rent-to-own agreement when the
consumer fails to make a periodic payment as it becomes due:
Provided, That seven days prior to terminating the rent-to-own
agreement, the dealer shall provide a written notice to the
consumer informing him or her:
(1) Of the amount of any periodic payment or payments that
the consumer has failed to make;
(2) That the consumer may voluntarily surrender possessionof the goods to the dealer at the location where the goods are
located;
(3) Of any late payment which has been or may be assessed;
(4) Of the right to reinstate which shall include:
(A) The consumer's right to reinstate the agreement by
payment of amounts due when the goods are in the possession of
the consumer;
(B) The amount of time when the consumer has to reinstate
the agreement;
(C) That reinstatement will result in continuation of the
original agreement, including the provisions relating to
ownership of the goods; and
(D) The amount of fees to be paid for reinstatement.
(e) The dealer may request that the goods be surrendered at
any time after a consumer has failed to timely make a periodic
payment required under the agreement. When the consumer
surrenders the goods, the transaction is terminated. The dealer
shall provide the consumer the notice required by this section.
§46B-3-4. Reinstatement of written rental agreement.
(a) The consumer may reinstate the transaction at any time
until the consumer is served, in a manner pursuant to rule four
of the rules of civil procedure, with a civil complaint arising
out of the transaction.
(b) When a consumer fails to timely make one or more
periodic payments, he or she may reinstate the original
rent-to-own transaction, without losing any right or option of
the consumer under the rental-purchase agreement, within sixtydays after the expiration of the last period for which the
consumer made a timely payment:
Provided, That if a consumer has
made more than forty percent of the regular payments required to
obtain ownership of the goods, pursuant to the rent-to-own
transaction, the consumer shall have ninety days to reinstate a
rent-to-own transaction:
Provided, however, That when a dealer
seeks to repossess the goods and has lawfully repossessed the
goods two previous times during the same transaction, the
consumer may not reinstate the transaction.
(c) If reinstatement occurs pursuant to this section, the
dealer shall provide the consumer with the same goods leased by
the consumer prior to the reinstatement or if those goods are not
available to the dealer, substitute property that is of no less
quality and condition. When substitute property is provided, the
dealer shall make all disclosures required by this chapter. When
consumer goods have been repossessed or returned to the
possession of the dealer prior to reinstatement, the dealer may
charge a nominal reinstatement fee, not to exceed five dollars.
§46B-3-5. Consumer's right to ownership of the goods.
When the consumer has paid all periodic payments required by
a rent-to-own transaction together with any other charges
authorized by law which have been lawfully imposed in the
transaction, he or she shall have exclusive ownership of the
goods:
Provided, That the consumer, after the initial payment,
may obtain ownership before the scheduled end of the rent-to-own
transaction by paying:
(1) A portion of the periodic payments, which have not yetbecome payable, subject to any limitation provided by this
chapter;
(2) All periodic payments and other charges authorized by
law which have already become due and which may be lawfully
imposed in the transaction; and
(3) The amount of any documentary or other fee charged by a
governmental entity to transfer ownership or proof of ownership.
§46B-3-6. Maintenance of goods.
A dealer shall maintain the goods that are the subject of
any rent-to-own transaction in working order and usable condition
until such time as the consumer obtains ownership of the goods.
§46B-3-7. Disclosure requirements.
(a) The dealer shall make all disclosures required by this
section.
(b) In all circumstances listed in subsection (c) of this
section, the dealer shall disclose the following information with
respect to the goods that are the subject of the rental agreement
in a clear, conspicuous and easily understood manner:
(1) Retail value;
(2) Rent-to-own charge;
(3) Rental period;
(4) Number of periodic payments required for ownership;
(5) Amount of each periodic payment;
(6) Total of all payments; and
(7) Whether the goods are new or have been previously rented
or are otherwise used.
(c) The dealer shall make the disclosures required in thissection:
(1) On a label attached or posted on top of the goods
displayed to any potential consumer;
(2) In any rent-to-own agreement as defined in section five,
article one of this chapter;
(3) In any telephone communication with a potential
consumer; and
(4) In any radio, television or printed advertisement for
the goods when the price for the item is included in the
advertisement.
Any oral communications concerning the terms and conditions
of the transaction shall be incorporated into a written agreement
which shall govern the transaction.
(d) In any transaction involving more than one dealer, only
one dealer may make the disclosures required by this article:
Provided, That when the name of the dealer is required to be
disclosed, all dealers shall be disclosed.
(e) A dealer may disclose information that is not required
by this section only when the additional information is not
stated, used or placed in a manner that may contradict, obscure
or distract attention from the information required by this
section.
§46B-3-8. Prohibitions for rent-to-own transactions.
No dealer may:
(1) Require any initial payment in any transaction except
the payment for the first rental period, taxes, insurance or
delivery fees and other disclosed fees or fees authorized by thischapter;
(2) Charge any fee at the time ownership of the consumer
goods passes to the consumer, other than an applicable fee, if
any, which actually is or will be paid to public officials for
perfecting title or ownership in the consumer;
(3) Raise the amount of any payment or charge after the
execution of the written agreement without both parties
voluntarily entering into a second written agreement;
(4) Take any action to collect a payment which is prohibited
by this chapter;
(5) Accept any cosigner other than a person who is in the
household of the consumer and who is expected to use the consumer
goods;
(6) Take any security interest in any property owned by the
consumer;
(7) Require a damage waiver, insurance or form of insurance,
insuring the consumer goods against loss or damage, unless the
dealer requires such insurance for all goods of comparable type
and value in every rent-to-own agreement;
(8) Require damage waiver from a particular insurer;
(9) Seek to collect any charge not authorized by this
chapter and disclosed in a written agreement; or
(10) Have an initial period which is more than one rental
period longer than any other rental period.
§46B-3-9. Limitations on charges and fees.
(a) Any consumer seeking to fulfill obligations pursuant to
section five of this article may be charged a fee no greater thanthe retail value divided by the total of payments multiplied by
the amount of the periodic payments which have not yet become
due.
(b) A dealer may not charge a fee for delivery or pickup
unless the charge is provided for in the written agreement, the
parties agree that the dealer shall deliver or pick up the goods;
and the charge is reasonably related to the costs of delivery:
Provided, That no delivery or pick up charge may be assessed in
any transaction when the transaction took place in any place
other than the premises of the dealer.
(c) Any late fee imposed by a dealer may not exceed five
percent of the periodic payment or fifteen dollars, whichever is
less. Only one late charge may be imposed for any payment for
which a late charge may be charged. Under a rental agreement in
which periodic payments are due weekly, a late charge may not be
imposed until the payment is three days late. Otherwise, a late
charge may not be imposed until the payment is five days late.
(d) The total of payments in a rent-to-own transaction shall
not be greater than two hundred forty percent of the retail
value.
§46B-3-10. Attorney general; promulgation of rules.
The attorney general may adopt, amend and repeal such
reasonable rules and regulations, in accordance with the
provisions of chapter twenty-nine-a of this code, as are
necessary and proper to effectuate the purposes of this chapter
and to prevent circumvention or evasion thereof. In addition,
the attorney general shall adopt, amend and repeal suchreasonable rules and regulations, in accordance with the
provisions of said chapter, as are necessary and proper to
determine formula or method of ascertaining retail value as
defined in this article and as are necessary and proper to detail
the requirements for disclosure set forth in this article.
ARTICLE 4. PROHIBITED CONDUCT.
§46B-4-1. Extortionate conduct in rent-to-own transaction.
If the court finds as a matter of fact that it was the
understanding of the dealer and the consumer at the time a rental
agreement for a rent-to-own transaction was made that delay in
making a payment could result in the use of violence or other
criminal means to cause harm to the person, reputation or
property of any person, the agreement of the extension of credit
is unenforceable through civil judicial process against the
dealer and the consumer, at his or her option, may rescind the
agreement and retain the goods without any obligation to pay for
them.
§46B-4-2. Referral sales or leases.
With respect to a rent-to-own transaction, the dealer may
not give or offer to give a rebate or discount or otherwise pay
or offer to pay value to the consumer as an inducement for a sale
or lease in consideration of his giving to the dealer the names
of prospective purchasers or consumers, or otherwise aiding the
dealer in making a lease to another person, if the earning of the
rebate, discount or other value is contingent upon the occurrence
of an event subsequent to the time the consumer agrees to lease.
If a consumer is induced by a violation of this section to enterinto a rent-to-own transaction, the agreement is unenforceable
against the consumer, who at his or her option, may rescind the
agreement and retain the goods without any obligation to pay for
them.
§46B-4-3. Practice of law by debt collectors.
Unless a licensed attorney in this state, no debt collector
shall engage in conduct deemed the practice of law. Without
limiting the general application of the foregoing, the following
conduct is deemed the practice of law:
(1) The performance of legal services, furnishing of legal
advice or false representation, direct or by implication, that
any person is an attorney;
(2) Any communication with consumers in the name of an
attorney or upon stationery or other written matter bearing an
attorney's name; and
(3) Any demand for or payment of money constituting a share
of compensation for services performed or to be performed by an
attorney in collecting a claim.
§46B-4-4. Threats or coercion.
No debt collector shall collect or attempt to collect any
money alleged to be due and owing by means of any threat,
coercion or attempt to coerce. Without limiting the general
application of the foregoing, the following conduct is deemed to
violate this section:
(1) The use, or express or implicit threat of use, of
violence or other criminal means to cause harm to the person,
reputation or property of any person;
(2) The accusation or threat to accuse any person of fraud,
any crime or any conduct which, if true, would tend to disgrace
such other person or in any way subject him to ridicule or any
conduct which, if true, would tend to disgrace such other person
or in any way subject him to ridicule or contempt of society;
(3) False accusations made to another person, including any
credit reporting agency, that a consumer is willfully refusing to
pay a just debt or the threat to so make false accusations;
(4) The threat to sell or assign to another the obligation
of the consumer with an attending representation or implication
that the result of such sale or assignment would be that the
consumer would lose any defense to the claim or would be
subjected to harsh, vindictive or abusive collection attempts;
(5) The threat that nonpayment of an alleged claim will
result in the:
(A) Arrest of any person; or
(B) Garnishment of any wages of any person or the taking of
other action requiring judicial sanction, without informing the
consumer that there must be in effect a judicial order permitting
such garnishment or such other action before it can be taken; and
(6) The threat to take any action prohibited by this chapter
or other law regulating the debt collector's conduct.
§46B-4-5. Oppression and abuse.
No debt collector shall unreasonably oppress or abuse any
person in connection with the collection of or attempt to collect
any claim alleged to be due and owing by that person or another.
Without limiting the general application of the foregoing, thefollowing conduct is deemed to violate this section:
(1) The use of profane or obscene language or language that
is intended to unreasonably abuse the hearer or reader;
(2) The placement of telephone calls without disclosure of
the caller's identity and with the intent to annoy, harass or
threaten any person at the called number;
(3) Causing expense to any person in the form of long
distance telephone tolls, telegram fees or other charges incurred
by a medium of communication, by concealment of the true purpose
of the communication; and
(4) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously, or at unusual
times or at times known to be inconvenient, with intent to annoy,
abuse, oppress or threaten any person at the called number.
§46B-4-6. Unreasonable publication.
No debt collector shall unreasonably publicize information
relating to any alleged indebtedness of consumer. Without
limiting the general application of the foregoing, the following
conduct is deemed to violate this section:
(1) The communication to any employer or his agent before
judgment has been rendered of any information relating to an
employee's indebtedness other than through proper legal action,
process or proceeding;
(2) The disclosure, publication or communication of
information relating to a consumer's indebtedness to any relative
or family member of the consumer if such person is not residing
with the consumer, except through proper legal action or processor at the express and unsolicited request of the relative or
family member;
(3) The disclosure, publication or communication of any
information relating to a consumer's indebtedness to any other
person other than a credit reporting agency, by publishing or
posting any list of consumers,
commonly known as "deadbeat
lists"; and
(4) The use of any form of communication to the consumer,
which ordinarily may be seen by any other persons, that displays
or conveys any information about the alleged claim other than the
name, address and phone number of the debt collector.
§46B-4-7. Fraudulent, deceptive or misleading representations.
No debt collector shall use any fraudulent, deceptive or
misleading representation or means to collect or attempt to
collect claims or to obtain information concerning consumers.
Without limiting the general application of the foregoing, the
following conduct is deemed to violate this section:
(1) The use of any business, company or organization name
while engaged in the collection of claims, other than the true
name of the debt collector's business, company or organization;
(2) The failure to clearly disclose in all communications
made to collect or attempt to collect a claim or to obtain or
attempt to obtain information about a consumer, that the debt
collector is attempting to collect a claim and that any
information obtained will be used for that purpose;
(3) Any false representation that the debt collector has in
his possession information or something of value for the consumerthat is made to solicit or discover information about the
consumer;
(4) The failure to clearly disclose the name and full
business address of the person to whom the claim has been
assigned for collection, or to whom the claim is owed, at the
time of making any demand for money;
(5) Any false representation or implication of the
character, extent or amount of a claim against a consumer or of
its status in any legal proceeding;
(6) Any false representation or false implication that any
debt collector is vouched for, bonded by, affiliated with or an
instrumentality, agent or official of this state or any agency of
the federal, state or local government;
(7) The use or distribution or sale of any written
communication which simulates or is falsely represented to be a
document authorized, issued or approved by a court, an official
or any other legally constituted or authorized authority, or
which creates a false impression about its source, authorization
or approval;
(8) Any representation that an existing obligation of the
consumer may be increased by the addition of attorney's fees,
investigation fees, service fees or any other fees or charges
when in fact such fees or charges may not legally be added to the
existing obligation; and
(9) Any false representation or false impression about the
status or true nature of or the services rendered by the debt
collector or his business.
§46B-4-8. Unfair or unconscionable means.
No debt collector shall use unfair or unconscionable means
to collect or attempt to collect any claim. Without limiting the
general application of the foregoing, the following conduct is
deemed to violate this section:
(1) The seeking or obtaining of any written statement or
acknowledgment in any form that specifies that a consumer's
obligation is one incurred for necessaries of life where the
original obligation was not in fact incurred for such
necessaries;
(2) The seeking or obtaining of any written statement or
acknowledgment in any form containing an affirmation of any
obligation by a consumer who has been declared bankrupt without
clearly disclosing the nature and consequences of such
affirmation and the fact that the consumer is not legally
obligated to make such affirmation;
(3) The collection or the attempt to collect from the
consumer all or any part of the debt collector's fee or charge
for services rendered;
(4) The collection of or the attempt to collect any interest
or other charge, fee or expense incidental to the principal
obligation unless such interest or incidental fee, charge or
expense is expressly authorized by the written rental agreement
and by statute; and
(5) Any communication with a consumer whenever it appears
that the consumer is represented by an attorney and the
attorney's name and address are known, or could be easilyascertained, unless the attorney fails to answer correspondence,
return phone calls or discuss the obligation in question or
unless the attorney consents to direct communication.
§46B-4-9. Postal violations.
No debt collector shall use, distribute, sell or prepare for
use any written communication which violates or fails to conform
to United States postal laws and regulations.
ARTICLE 5. ASSIGNMENT AND RECEIPT OF PAYMENT.
§46B-5-1. Notice of assignment.
A consumer is authorized to pay the original dealer until he
receives notification of assignment of rights to payment pursuant
to a rent-to-own transaction and that payment is to be made to
the assignee. A notification which does not reasonably identify
the rights assigned is ineffective. If requested by the
consumer, the assignee must seasonably furnish reasonable proof
that the assignment has been made and unless he does so the
consumer may pay the original dealer.
§46B-5-2. Receipts; statements of account; evidence of payment.
(a) The dealer shall deliver or mail to the consumer,
without request, a written receipt for each payment by coin or
currency on an obligation pursuant to a written rental agreement.
A periodic statement showing a payment received complies with
this subsection.
(b) Upon written request of a consumer, the dealer shall
provide a written statement of the dates and amounts of payments
made within the past twelve months and the total amount unpaid.
The requested statement shall be provided without charge onceduring each year of the term of the agreement. If additional
statements are requested, the creditor may charge not in excess
of three dollars for each additional statement.
(c) After a consumer has fulfilled all obligations with
respect to a rent-to-own transaction, the dealer shall, upon the
request of the consumer, deliver or mail to the consumer written
evidence acknowledging payment in full of all obligations with
respect to the transaction.
§46B-5-3. Notification.
(a) Every person engaged in this state in making rent-to-own
transactions and every person having an office or place of
business in this state who takes assignments of and undertakes
direct collection of payments from or enforcement of rights
against debtors arising from such transactions shall file
notification with the state tax department within thirty days
after commencing business in this state, and, thereafter, on or
before the thirty-first day of January of each year. A
notification shall be deemed to be in compliance with this
section if the information hereinafter required is given in an
application for a business registration certificate provided for
in section four, article twelve, chapter eleven of this code.
The state tax commissioner shall make any information required by
this section available to the attorney general or commissioner
upon request. The notification shall state:
(1) Name of the person;
(2) Name in which business is transacted if different from
subdivision (1) of this subsection;
(3) Address of principal office, which may be outside this
state;
(4) Address of all offices or retail stores, if any, in this
state at which rent-to-own transactions are made or, in the case
of a person taking assignments of obligations, the offices or
places of business within this state at which business is
transacted; and
(5) Address of designated agent upon whom service of process
may be made in this state.
(b) If information in a notification becomes inaccurate
after filing, accurate information must be filed within thirty
days.
ARTICLE 6. LIMITATIONS ON COLLECTIONS AND RELATED PROVISIONS.
§46B-6-1. Assignment of earnings.
(a) The maximum part of the aggregate disposable earnings of
an individual for any workweek which may be subjected to any one
or more assignments of earnings for the payment of a debt or
debts arising from one or more rent-to-own transactions may not
exceed twenty-five percent of his disposable earnings for that
week.
(b) As used in this section:
(1) "Disposable earnings" means that part of the earnings of
an individual remaining after the deduction from those earnings
of amounts required by law to be withheld; and
(2) "Assignment of earnings" includes all forms of
assignments, deductions, transfers or sales of earnings to
another, either as payment or as security and whether stated tobe revocable or nonrevocable and includes any deductions
authorized under the provisions of section three, article five,
chapter twenty-one of this code, except deductions for union or
club dues, pension plans, payroll savings plans, charities, stock
purchase plans and hospitalization and medical insurance.
(c) Any assignment of earnings and any deduction under
section three, article five, chapter twenty-one of this code
shall be revocable by the employee at will at any time,
notwithstanding any provision to the contrary.
(d) The priority of multiple assignments of earnings shall
be according to the date and time of each such assignment.
§46B-6-2. Authorization to confess judgment prohibited.
A consumer may not authorize any person to confess judgment
on a claim arising out of a rent-to-own transaction. An
authorization in violation of this section is void. The
provisions of this section shall not be construed as in any way
impliedly authorizing a confession of judgment in any other type
of transaction.
§46B-6-3. No garnishment before judgment.
Prior to entry of judgment in an action against the consumer
for debt arising from a rent-to-own transaction, the dealer may
not attach unpaid earnings of the consumer by garnishment or like
proceedings. The provisions of this section shall not be
construed as in any way impliedly authorizing garnishment before
judgment in any other type of transaction.
§46B-6-4. Limitation on garnishment.
(a) For the purposes of the provisions in this chapterrelating to garnishment:
(1) "Disposable earnings" means that part of the earnings of
an individual remaining after the deduction from those earnings
of amounts required by law to be withheld; and
(2) "Garnishment" means any legal or equitable procedure
through which the earnings of an individual are required to be
withheld for payment of a debt.
(b) The maximum part of the aggregate disposable earnings of
an individual for any workweek which is subjected to garnishment
to enforce payment of a judgment arising from a rent-to-own
transaction may not exceed the lesser of:
(1) Twenty percent of his disposable earnings for that week;
(2) The amount by which his disposable earnings for that
week exceed thirty times the federal minimum hourly wage
prescribed by Section 6(a)(1) of the "Fair Labor Standards Act of
1938", U.S.C. Title 19, Section 206(a)(1), in effect at the time
the earnings are payable; or
(3) In the case of earnings for a pay period other than a
week, the commissioner shall prescribe by rule a multiple of the
federal minimum hourly wage equivalent in effect to that set
forth in subdivision (2) of this subsection.
(c) No court may make, execute or enforce an order or
process in violation of this section. Any time after a
consumer's earnings have been executed upon pursuant to article
five-a or five-b, chapter thirty-eight of this code by a creditor
resulting from a rent-to-own transaction, such consumer may
petition any court having jurisdiction of such matter or thecircuit court of the county wherein he resides to reduce or
temporarily or permanently remove such execution upon his
earnings on the grounds that such execution causes or will cause
undue hardship to him or his family. When such fact is proved to
the satisfaction of such court, it may reduce or temporarily or
permanently remove such execution.
(d) No garnishment governed by the provisions of this
section will be given priority over a voluntary assignment of
wages to fulfill a support obligation, a garnishment to collect
arrearages in support payments or a notice of withholding from
wages of amounts payable as support, notwithstanding the fact
that the garnishment in question or the judgment upon which it is
based may have preceded the support-related assignment,
garnishment or notice of withholding in point of time or filing.
§46B-6-5. No discharge or reprisal because of garnishment.
No employer shall discharge or take any other form of
reprisal against an employee for the reason that a creditor of
the employee has subjected or attempted to subject unpaid
earnings of the employee to garnishment or like proceedings
directed to the employer for the purpose of paying a judgment
arising from a rent-to-own transaction.
§46B-6-6. Personal property exemptions.
Any consumer residing in this state may set apart and hold
personal property to be exempt from execution or other judicial
process resulting from rent-to-own transactions, except for the
purchase money due on such property, in such amounts as follows:
Clothing and other wearing apparel of the consumer, his spouseand any dependents of such consumer, not to exceed the fair
market value of two hundred dollars; furniture, appliances,
furnishings and fixtures regularly used for family purposes in
the consumer's residence, to the extent of the fair market value
of one thousand dollars; children's books, pictures, toys and
other such personal property of children; all medical health
equipment used for health purposes by the consumer, his or her
spouse and any dependent of such consumer; tools of trade,
including any income-producing property used in the consumer's
principal occupation, to the extent of the fair market value of
one thousand dollars; and any policy of life or endowment
insurance which is payable to the spouse or children of the
insured consumer or to a trustee for their benefit, except the
cash value of any accrued dividends thereon. When a consumer
claims personal property as exempt under the provisions of this
section, he shall deliver a list containing all the personal
property owned or claimed by him and all items of such property
he claims as exempt hereunder, with the value of each separate
item listed according to his best knowledge, to the officer
holding the execution or other such process. Such list shall be
sworn to by affidavit. If the value of the property named in
such list exceeds the amounts specified in this section, the
consumer shall state at the foot thereof what part of such
property he claims as exempt. If such value does not exceed the
amounts specified in this section, the claim of exemption shall
be held to extend to the whole thereof without stating more and,
if no appraisement is demanded, the property so claimed shall beset aside as exempt. Where the consumer owning exempt property is
absent or incapable of acting or neglects or declines to act
hereunder, the claim of exemption may be made, the list delivered
and the affidavit made by his spouse with the same effect as if
the consumer had done so. Upon receipt of such a list, the
officer to whom it is given shall immediately exhibit such list
to the dealer or his agent or attorney. The rights granted and
procedures provided for in article eight, chapter thirty-eight of
this code shall apply to any proceeding under this section,
except that the provisions of sections one and three of such
article shall not apply.
ARTICLE 7. NONRESIDENT DEFENDANTS.
§46B-7-1. Service of process on certain nonresidents.
Any nonresident person, except a nonresident corporation
authorized to do business in this state pursuant to the
provisions of chapter thirty-one of this code, who takes or holds
any negotiable instrument, nonnegotiable instrument, or contract
or other writing, arising from a rent-to-own lease which is
subject to the provisions of this chapter, shall be conclusively
presumed to have appointed the secretary of state as his
attorney-in-fact with authority to accept service of notice and
process in any action or proceeding brought against him arising
out of such rent-to-own transaction. A person shall be
considered a nonresident hereunder if he is a nonresident at the
time such service of notice and process is sought. No act of
such person appointing the secretary of state shall be necessary.
Immediately after being served with or accepting any such processor notice, of which process or notice two copies for each
defendant shall be furnished the secretary of state with the
original notice or process, together with a fee of two dollars,
the secretary of state shall file in his office a copy of such
process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy
of such process or notice by registered or certified mail, return
receipt requested, to such person at his address, which address
shall be stated in such process or notice:
Provided, That such
return receipt shall be signed by such person or an agent or
employee of such person if a corporation, or the registered or
certified mail so sent by said secretary of state is refused by
the addressee and the registered or certified mail is returned to
said secretary of state, or to his office, showing thereon the
stamp of the U.S. postal service that delivery thereof has been
refused, and such return receipt or registered or certified mail
is appended to the original process or notice and filed therewith
in the clerk's office of the court from which such process or
notice was issued. But no process or notice shall be served on
the secretary of state or accepted fewer than ten days before the
return date thereof. The court may order such continuances as
may be reasonable to afford each defendant opportunity to defend
the action or proceeding.
The provisions for service of process or notice herein are
cumulative and nothing herein contained shall be construed as a
bar to the plaintiff in any action from having process or notice
in such action served in any other mode and manner provided bylaw.
ARTICLE 8. ENFORCEMENT AND REMEDIES.
§46B-8-1. Enforcement.
For a violation of or a failure to comply with the
provisions of this article by a dealer, a consumer is entitled to
recover from the dealer the consumer's actual damages, reasonable
attorney's fees and court costs and a civil penalty in an amount
not less than one hundred dollars nor more than one thousand
dollars for each violation.
§46B-8-2. Injunctions against unconscionable agreements and
fraudulent or unconscionable conduct.
(a) The attorney general may bring a civil action to
restrain a dealer or a person acting in his behalf from engaging
in a course of:
(1) Making or enforcing unconscionable terms or provisions
of rent-to-own transactions;
(2) Fraudulent or unconscionable conduct in inducing
consumers to enter into rent-to-own transactions; or
(3) Fraudulent or unconscionable conduct in the collection
of payments arising from rent-to-own transactions.
(b) In an action brought pursuant to this section the court
may grant relief only if it finds:
(1) That the respondent has made unconscionable agreements
or has engaged or is likely to engage in a course of fraudulent
or unconscionable conduct;
(2) That the agreements or conduct of the respondent have
caused or are likely to cause injury to consumers; and
(3) That the respondent has been able to cause or will be
able to cause the injury primarily because the transactions
involved are rent-to-own transactions.
(c) In applying this section, consideration shall be given
to each of the following factors, among others:
(1) Belief by the dealer at the time rent-to-own
transactions are made that there was no reasonable probability of
payment in full of the obligation by the consumer;
(2) Knowledge by the dealer at the time of the sale of the
inability of the consumer to receive substantial benefits from
the transaction;
(3) Gross disparity between the price of the property or
services sold that are the subject of the transaction and the
value of the property measured by the price at which similar
property are readily obtainable in rent-to-own transactions by
like consumers;
(4) The fact that the dealer contracted for or received
separate charges for insurance with respect to the goods with the
effect of making the sales or loans, considered as a whole,
unconscionable; and
(5) The fact that the respondent has knowingly taken
advantage of the inability of the consumer reasonably to protect
his interests by reason of physical or mental infirmities,
ignorance, illiteracy or inability to understand the language of
the agreement or similar factors.
(d) In an action brought pursuant to this chapter, a charge
or practice expressly permitted by this chapter is notunconscionable.
§46B-8-3. Civil actions by attorney general.
(a) After demand, the attorney general may bring a civil
action against a dealer for making or collecting charges in
excess of those permitted by this chapter. If the court finds
that an excess charge has been made, the court shall order the
respondent to refund to the consumer the amount of the excess
charge. If a dealer has made an excess charge in a deliberate
violation of or in reckless disregard for this chapter or if a
dealer has refused to refund an excess charge within a reasonable
time after demand by the consumer or the attorney general, the
court may also order the respondent to pay to the consumer a
civil penalty in an amount determined by the court not in excess
of ten times the amount of the excess charge. Refunds and
penalties to which the consumer is entitled pursuant to this
subsection may be set off against the consumer's obligation. If
a consumer brings an action against a dealer to recover an excess
charge or civil penalty, an action by the attorney general to
recover for the same excess charge shall be stayed while the
consumer's action is pending and shall be dismissed if the
consumer's action is dismissed with prejudice or results in a
final judgment granting or denying the consumer's claim. No
action pursuant to this subsection may be brought more than one
year after the time the excess charge was made. If the dealer
establishes by a preponderance of evidence that a violation is
unintentional or the result of a bona fide error, no liability to
pay a penalty shall be imposed under this subsection.
(b) The attorney general may bring a civil action against a
dealer to recover a civil penalty for willfully violating this
chapter and if the court finds that the defendant has engaged in
a course of repeated and willful violations of this chapter, it
may assess a civil penalty of no more than five thousand dollars.
No civil penalty pursuant to this subsection may be imposed for
violations of this chapter occurring more than four years before
the action is brought.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-32. Removal out of county of property securing claim;
penalties; fraudulent disposition of personal property in
possession by virtue of lease; notice to return; failure to
return; penalty; right to immediate possession.
(a) Any debtor under any security instrument conveying
personal property, who retains possession of such personal
property, and who, without the consent of the owner of the claim
secured by such security instrument, and with intent to defraud,
removes or causes to be removed any of the property securing such
claim out of the county where it is situated at the time it
became security for such claim or out of a county to which it was
removed by virtue of a former consent of the owner of the claim
under this section, or, with intent to defraud, secretes or sells
the same, or converts the same to his own use, shall be guilty of
a misdemeanor, and, upon conviction thereof, be fined not more
than five hundred dollars, or imprisoned not more than six
months, or both, in the discretion of the court.
(b) Any person in possession or control of any personal
property by virtue of or subject to a written lease who, with
intent to defraud and without written consent of the owner,
disposes of such property by sale or transfer, or, after
receiving a written notice to return the property or otherwise
make the property available to the lessor, secretes or converts
such property to his own use and in so doing places the property
in a location other than the locations described in the written
lease, or removes or causes to be removed such property from the
state shall be deemed guilty of the larceny of such property.
In any prosecution under the provisions of this subsection,
written notice may be mailed by certified mail, addressed to the
consumer at the address of the consumer stated in the lease, and
served on the consumer within ten days of the expiration of the
lease, which notice shall state that the lease has expired and
that consumer has ten days from receipt of such notice to return
the leased property. Proof that the consumer failed to return
the property within ten days of receiving such notice shall in
any prosecution under this subsection constitute prima facie
evidence that the consumer intended to defraud the owner.
Whenever the consumer is a resident of the county in which
the lease was contracted, the dealer, after written notice to the
consumer within ten days after the expiration of the lease, has
the right to immediate possession of the leased property, without
formal process to secure return and possession of the leased
property, if this can be done without breach of the peace. The
dealer is not liable to the consumer for any damages for anyaction taken that is reasonable, necessary and incidental to the
reclaiming or taking possession of the leased property.