16a-5-201.(UCCC) Effect of violations on rights of parties.
(1) If a creditor has violated the provisions of this act applying to
collection of excess charges or enforcement of rights (subsection (4) of
section 16a-1-201), restrictions on interests in land as security
(section 16a-2-307), limitations on the schedule of payments or loan
terms for supervised loans (section 16a-2-308), attorney's fees (section
16a-2-507), security in sales and leases (section 16a-3-301),
assignments of earnings (section 16a-3-305), authorizations to confess
judgment (section 16a-3-306), certain negotiable instruments prohibited
(section 16a-3-307), assignees subject to defenses (section 16a-3-404),
credit card issuer subject to defenses (section 16a-3-403), or
limitations on default charges (section 16a-3-402), the consumer has a
cause of action to recover actual damages and in addition a right in an
action other than a class action to recover from the person violating
such provisions of this act a penalty in an amount determined by the
court not less than $100 nor more than $1,000. With respect to violations arising from
sales
or loans made pursuant to open end credit, no action pursuant to this
subsection may be brought more than two years after the violations
occurred. With respect to violations arising from other consumer
transactions, no action pursuant to this subsection may be brought more
than one year after the due date of the last scheduled payment of the
agreement.
(2) If a creditor has violated the provisions of this act applying
to authority to make supervised loans (section 16a-2-301), the loan is
void and the consumer is not obligated to pay either the amount financed
or finance charge. If the consumer has paid any part of the amount
financed or of
the finance charge, the consumer has a right to recover the payment
from the
person violating this act or from an assignee of that person's rights
who undertakes direct collection of payments or enforcement of rights
arising from the debt. With respect to violations arising from loans
made pursuant to open end credit, no action pursuant to this subsection
may be brought more than two years after the violation occurred. With
respect to violations arising from other loans, no action pursuant to
this subsection may be brought more than one year after the due date of
the last scheduled payment of the agreement pursuant to which the charge
was paid. Persons subject to the penalties in this subsection shall not
include attorneys or collection agencies who do not purchase a consumer
obligation.
(3) A consumer is not obligated to pay a charge in excess of that
allowed by this act, and if the consumer has paid an excess charge the consumer has a right
to a refund of twice the excess charge. A refund may be made by reducing
the consumer's obligation by twice the amount of the excess charge. If
the consumer has paid an amount in excess of the lawful obligation under
the agreement, the consumer may recover twice the excess amount from the
person who made the excess charge or from an assignee of that person's
rights who undertakes direct collection of payments from or enforcement
of rights against debtors arising from the debt. Persons subject to the
penalties in this subsection shall not include attorneys or collection
agencies who do not purchase a consumer obligation.
(4) If a creditor has contracted for or received a charge in excess
of that allowed by this act, or if a consumer is entitled to a refund
and a person liable to the consumer refuses to make a refund within a
reasonable time after demand, the consumer may recover from the creditor
or the person liable in an action other than a class action a penalty in
an amount determined by the court not less than $100 or more than $1,000.
With respect to
excess charges arising from sales or loans made pursuant to open end
credit, no action pursuant to this subsection may be brought more than
two years after the time the excess charge was made. With respect to
excess charges arising from other consumer credit transactions no action
pursuant to this subsection may be brought more than one year after the
due date of the last scheduled payment of the agreement pursuant to
which the charge was made. Persons subject to the penalties in this
subsection shall not include attorneys or collection agencies who do not
purchase a consumer obligation.
(5) Except as otherwise provided, no violation of the provisions of
K.S.A. 16a-1-101 through 16a-9-102, and amendments thereto, impairs
rights on a debt.
(6) A creditor has no liability for a penalty under subsection (1)
or subsection (4) if within 15 days after discovering an
error, and prior to the institution of an action under this section or
the receipt of written notice of the error, the creditor notifies the
person concerned of the error and corrects the error. If the violation
consists of a prohibited agreement, giving the consumer a corrected copy
of the writing containing the error is sufficient notification and
correction. If the violation consists of an excess charge, correction
shall be made by an adjustment or refund.
(7) If the creditor establishes by a preponderance of evidence that
a violation is unintentional or the result of a bona fide error of law
or fact notwithstanding the maintenance of procedures reasonably adapted
to avoid any such violation or error, no liability is imposed under
subsections (1), (2), and (3), the validity of the transaction is not
affected, and no liability is imposed under subsection (4) except for
refusal to make a refund.
(8) In an action in which it is found that a creditor has violated
any provision of K.S.A. 16a-1-101 through 16a-9-102, and amendments
thereto, the court shall award
to the consumer the costs of the action
and to the consumer's attorneys their reasonable fees. Reasonable
attorney's fees
shall be determined by the value of the time reasonably expended by the
attorney and not by the amount of the recovery on behalf of the
consumer.
(9) A creditor who in good faith complies with a written administrative
interpretation shall not be subject to any penalties under this section for any
act done or omitted in conformity with such written administrative
interpretation.
History: L. 1973, ch. 85, § 89;
L. 1992, ch. 80, § 2; July 1.
16a-5-201.(UCCC) Effect of violations on rights of parties.
(1) If a creditor has violated the provisions of this act applying to
collection of excess charges or enforcement of rights (subsection (4) of
section 16a-1-201), restrictions on interests in land as security
(section 16a-2-307), limitations on the schedule of payments or loan
terms for supervised loans (section 16a-2-308), attorney's fees (section
16a-2-507), security in sales and leases (section 16a-3-301),
assignments of earnings (section 16a-3-305), authorizations to confess
judgment (section 16a-3-306), certain negotiable instruments prohibited
(section 16a-3-307), assignees subject to defenses (section 16a-3-404),
credit card issuer subject to defenses (section 16a-3-403), or
limitations on default charges (section 16a-3-402), the consumer has a
cause of action to recover actual damages and in addition a right in an
action other than a class action to recover from the person violating
such provisions of this act a penalty in an amount determined by the
court not less than $100 nor more than $1,000. With respect to violations arising from
sales
or loans made pursuant to open end credit, no action pursuant to this
subsection may be brought more than two years after the violations
occurred. With respect to violations arising from other consumer
transactions, no action pursuant to this subsection may be brought more
than one year after the due date of the last scheduled payment of the
agreement.
(2) If a creditor has violated the provisions of this act applying
to authority to make supervised loans (section 16a-2-301), the loan is
void and the consumer is not obligated to pay either the amount financed
or finance charge. If the consumer has paid any part of the amount
financed or of
the finance charge, the consumer has a right to recover the payment
from the
person violating this act or from an assignee of that person's rights
who undertakes direct collection of payments or enforcement of rights
arising from the debt. With respect to violations arising from loans
made pursuant to open end credit, no action pursuant to this subsection
may be brought more than two years after the violation occurred. With
respect to violations arising from other loans, no action pursuant to
this subsection may be brought more than one year after the due date of
the last scheduled payment of the agreement pursuant to which the charge
was paid. Persons subject to the penalties in this subsection shall not
include attorneys or collection agencies who do not purchase a consumer
obligation.
(3) A consumer is not obligated to pay a charge in excess of that
allowed by this act, and if the consumer has paid an excess charge the consumer has a right
to a refund of twice the excess charge. A refund may be made by reducing
the consumer's obligation by twice the amount of the excess charge. If
the consumer has paid an amount in excess of the lawful obligation under
the agreement, the consumer may recover twice the excess amount from the
person who made the excess charge or from an assignee of that person's
rights who undertakes direct collection of payments from or enforcement
of rights against debtors arising from the debt. Persons subject to the
penalties in this subsection shall not include attorneys or collection
agencies who do not purchase a consumer obligation.
(4) If a creditor has contracted for or received a charge in excess
of that allowed by this act, or if a consumer is entitled to a refund
and a person liable to the consumer refuses to make a refund within a
reasonable time after demand, the consumer may recover from the creditor
or the person liable in an action other than a class action a penalty in
an amount determined by the court not less than $100 or more than $1,000.
With respect to
excess charges arising from sales or loans made pursuant to open end
credit, no action pursuant to this subsection may be brought more than
two years after the time the excess charge was made. With respect to
excess charges arising from other consumer credit transactions no action
pursuant to this subsection may be brought more than one year after the
due date of the last scheduled payment of the agreement pursuant to
which the charge was made. Persons subject to the penalties in this
subsection shall not include attorneys or collection agencies who do not
purchase a consumer obligation.
(5) Except as otherwise provided, no violation of the provisions of
K.S.A. 16a-1-101 through 16a-9-102, and amendments thereto, impairs
rights on a debt.
(6) A creditor has no liability for a penalty under subsection (1)
or subsection (4) if within 15 days after discovering an
error, and prior to the institution of an action under this section or
the receipt of written notice of the error, the creditor notifies the
person concerned of the error and corrects the error. If the violation
consists of a prohibited agreement, giving the consumer a corrected copy
of the writing containing the error is sufficient notification and
correction. If the violation consists of an excess charge, correction
shall be made by an adjustment or refund.
(7) If the creditor establishes by a preponderance of evidence that
a violation is unintentional or the result of a bona fide error of law
or fact notwithstanding the maintenance of procedures reasonably adapted
to avoid any such violation or error, no liability is imposed under
subsections (1), (2), and (3), the validity of the transaction is not
affected, and no liability is imposed under subsection (4) except for
refusal to make a refund.
(8) In an action in which it is found that a creditor has violated
any provision of K.S.A. 16a-1-101 through 16a-9-102, and amendments
thereto, the court shall award
to the consumer the costs of the action
and to the consumer's attorneys their reasonable fees. Reasonable
attorney's fees
shall be determined by the value of the time reasonably expended by the
attorney and not by the amount of the recovery on behalf of the
consumer.
(9) A creditor who in good faith complies with a written administrative
interpretation shall not be subject to any penalties under this section for any
act done or omitted in conformity with such written administrative
interpretation.
History: L. 1973, ch. 85, § 89;
L. 1992, ch. 80, § 2; July 1.
16a-5-201.(UCCC) Effect of violations on rights of parties.
(1) If a creditor has violated the provisions of this act applying to
collection of excess charges or enforcement of rights (subsection (4) of
section 16a-1-201), restrictions on interests in land as security
(section 16a-2-307), limitations on the schedule of payments or loan
terms for supervised loans (section 16a-2-308), attorney's fees (section
16a-2-507), security in sales and leases (section 16a-3-301),
assignments of earnings (section 16a-3-305), authorizations to confess
judgment (section 16a-3-306), certain negotiable instruments prohibited
(section 16a-3-307), assignees subject to defenses (section 16a-3-404),
credit card issuer subject to defenses (section 16a-3-403), or
limitations on default charges (section 16a-3-402), the consumer has a
cause of action to recover actual damages and in addition a right in an
action other than a class action to recover from the person violating
such provisions of this act a penalty in an amount determined by the
court not less than $100 nor more than $1,000. With respect to violations arising from
sales
or loans made pursuant to open end credit, no action pursuant to this
subsection may be brought more than two years after the violations
occurred. With respect to violations arising from other consumer
transactions, no action pursuant to this subsection may be brought more
than one year after the due date of the last scheduled payment of the
agreement.
(2) If a creditor has violated the provisions of this act applying
to authority to make supervised loans (section 16a-2-301), the loan is
void and the consumer is not obligated to pay either the amount financed
or finance charge. If the consumer has paid any part of the amount
financed or of
the finance charge, the consumer has a right to recover the payment
from the
person violating this act or from an assignee of that person's rights
who undertakes direct collection of payments or enforcement of rights
arising from the debt. With respect to violations arising from loans
made pursuant to open end credit, no action pursuant to this subsection
may be brought more than two years after the violation occurred. With
respect to violations arising from other loans, no action pursuant to
this subsection may be brought more than one year after the due date of
the last scheduled payment of the agreement pursuant to which the charge
was paid. Persons subject to the penalties in this subsection shall not
include attorneys or collection agencies who do not purchase a consumer
obligation.
(3) A consumer is not obligated to pay a charge in excess of that
allowed by this act, and if the consumer has paid an excess charge the consumer has a right
to a refund of twice the excess charge. A refund may be made by reducing
the consumer's obligation by twice the amount of the excess charge. If
the consumer has paid an amount in excess of the lawful obligation under
the agreement, the consumer may recover twice the excess amount from the
person who made the excess charge or from an assignee of that person's
rights who undertakes direct collection of payments from or enforcement
of rights against debtors arising from the debt. Persons subject to the
penalties in this subsection shall not include attorneys or collection
agencies who do not purchase a consumer obligation.
(4) If a creditor has contracted for or received a charge in excess
of that allowed by this act, or if a consumer is entitled to a refund
and a person liable to the consumer refuses to make a refund within a
reasonable time after demand, the consumer may recover from the creditor
or the person liable in an action other than a class action a penalty in
an amount determined by the court not less than $100 or more than $1,000.
With respect to
excess charges arising from sales or loans made pursuant to open end
credit, no action pursuant to this subsection may be brought more than
two years after the time the excess charge was made. With respect to
excess charges arising from other consumer credit transactions no action
pursuant to this subsection may be brought more than one year after the
due date of the last scheduled payment of the agreement pursuant to
which the charge was made. Persons subject to the penalties in this
subsection shall not include attorneys or collection agencies who do not
purchase a consumer obligation.
(5) Except as otherwise provided, no violation of the provisions of
K.S.A. 16a-1-101 through 16a-9-102, and amendments thereto, impairs
rights on a debt.
(6) A creditor has no liability for a penalty under subsection (1)
or subsection (4) if within 15 days after discovering an
error, and prior to the institution of an action under this section or
the receipt of written notice of the error, the creditor notifies the
person concerned of the error and corrects the error. If the violation
consists of a prohibited agreement, giving the consumer a corrected copy
of the writing containing the error is sufficient notification and
correction. If the violation consists of an excess charge, correction
shall be made by an adjustment or refund.
(7) If the creditor establishes by a preponderance of evidence that
a violation is unintentional or the result of a bona fide error of law
or fact notwithstanding the maintenance of procedures reasonably adapted
to avoid any such violation or error, no liability is imposed under
subsections (1), (2), and (3), the validity of the transaction is not
affected, and no liability is imposed under subsection (4) except for
refusal to make a refund.
(8) In an action in which it is found that a creditor has violated
any provision of K.S.A. 16a-1-101 through 16a-9-102, and amendments
thereto, the court shall award
to the consumer the costs of the action
and to the consumer's attorneys their reasonable fees. Reasonable
attorney's fees
shall be determined by the value of the time reasonably expended by the
attorney and not by the amount of the recovery on behalf of the
consumer.
(9) A creditor who in good faith complies with a written administrative
interpretation shall not be subject to any penalties under this section for any
act done or omitted in conformity with such written administrative
interpretation.
History: L. 1973, ch. 85, § 89;
L. 1992, ch. 80, § 2; July 1.