Current Status Bill Number:3272 Ratification Number:217 Act Number:99 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970121 Primary Sponsor:Cato All Sponsors:Cato, Limehouse, H. Brown, Tripp, Cooper, Chellis, Seithel, Young-Brickell, Carnell, Mason, Meacham, Bailey, Haskins, Gamble, Allison, Trotter, Robinson, Sandifer, Lee, Govan, Law, Sharpe, Loftis, Phillips, Limbaugh, Harrell, J. Smith, J. Brown, Boan, Simrill, Wilkes and Neilson Drafted Document Number:dka\3969mm.97 Date Bill Passed both Bodies:19970604 Date of Last Amendment:19970529 Governor's Action:U Became law without signature of Governor Date of Governor's Action:19970615 Subject:Consumer loans, individual cause of action, class action violation; Consumer Affairs
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
------ 19970630 Act No. A99
------ 19970615 Unsigned, became law without
signature of Governor
------ 19970609 Ratified R217
House 19970604 Concurred in Senate amendment,
enrolled for ratification
Senate 19970529 Amended, read third time,
returned to House with amendment
Senate 19970520 Read second time, ordered to
third reading with notice of
general amendments
Senate 19970520 Committee amendment adopted
Senate 19970515 Polled out of Committee: 02 SBI
Favorable with amendment
Senate 19970304 Introduced, read first time, 02 SBI
referred to Committee
House 19970303 Amended, read third time,
sent to Senate
House 19970227 Amended, read second time
House 19970226 Debate interrupted
House 19970225 Debate adjourned until
Wednesday, 19970226
House 19970220 Debate adjourned until
Tuesday, 19970225
House 19970219 Debate interrupted by adjournment
House 19970213 Debate adjourned until
Tuesday, 19970218
House 19970212 Debate adjourned until
Thursday, 19970213
House 19970205 Committee report: majority 26 HLCI
favorable, with amendment,
minority unfavorable
House 19970121 Introduced, read first time, 26 HLCI
referred to Committee
View additional legislative information at the LPITS web site.
(A99, R217, H3272)
AN ACT TO AMEND SECTION 37-10-105, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PENALTIES FOR THE VIOLATION OF THE ATTORNEY'S PREFERENCE LOAN PROVISION UNDER THE CONSUMER PROTECTION CODE, SO AS TO DELETE CERTAIN PENALTY PROVISIONS, TO CREATE AN INDIVIDUAL CAUSE OF ACTION AND TO PROHIBIT A CLASS ACTION FOR A VIOLATION OF THE CHAPTER, AND TO SET ELEMENTS OF RECOVERABLE DAMAGES; AND TO MAKE THESE PROVISIONS APPLY TO CAUSES OF ACTION, INCLUDING APPEALS, PENDING ON MAY 2, 1997, AND TO LIMIT RECOVERY IN CLASS ACTIONS FILED ON OR BEFORE THAT DATE.
Be it enacted by the General Assembly of the State of South Carolina:
Provides for certain actions by consumer against lender violating attorney's preference option
SECTION 1. Section 37-10-105 of the 1976 Code is amended to read:
"Section 37-10-105. (A) If a creditor violates a provision of this chapter, the debtor has a cause of action, other than in a class action, to recover actual damages and also a right in an action, other than in a class action, to recover from the person violating this chapter a penalty in an amount determined by the court of not less than one thousand five hundred dollars and not more than seven thousand five hundred dollars. No debtor may bring a class action for a violation of this chapter. No debtor may bring an action for a violation of this chapter more than three years after the violation occurred, except as set forth in subsection (C). The three-year statute of limitations applies to actions commenced after May 2, 1997. No inference should be drawn as to the applicable statute of limitations for any pending actions. This subsection does not bar a debtor from asserting a violation of this chapter in an action to collect a debt which was brought more than three years from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action.
(B) No creditor may be held liable in an action brought under this section for a violation of this chapter if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error.
(C) If the court finds as a matter of law that the agreement or transaction is unconscionable pursuant to Section 37-5-108 at the time it was made, or was induced by unconscionable conduct, the court may, in an action other than a class action:
(1) refuse to enforce the agreement, or a term, or part of the agreement or transaction that the court determines to have been unconscionable at the time it was made;
(2) enforce the remainder of the agreement without the unconscionable term or part, or limit the application of the unconscionable term or part to avoid an unconscionable result;
(3) rewrite or modify the agreement to eliminate an unconscionable term, part, or result and enforce the new agreement; or
(4) award:
(a) not more than the total amount of the loan finance charge and allow repayment of the unpaid balance of the loan without any finance charge;
(b) not more than double the amount of the excess loan finance charge or other charges or fees actually received by the creditor or paid by the debtor to a third party; and
(c) attorney's fees and costs.
An action pursuant to this subsection may not be brought after the original scheduled maturity date of the debt.
(D) In an action in which it is found that a creditor has violated this chapter, the court shall award to the debtor the costs of the action and to his attorneys their reasonable fees. In determining attorneys' fees, the amount of the recovery on behalf of the debtor is not controlling."
Enhances scope of Legislative Study Committee on consumer finance industry for 1997
SECTION 2. The first sentence of Section 20(A) of Act 135 of 1995 is amended to read:
"On or after July 1, 1997, a review of the consumer finance industry shall be commenced by a legislative study committee in order to study the impact of this act and such other matters as the committee deems appropriate."
Enhances scope of Legislative Study Committee on consumer finance industry for 1998
SECTION 3. The first sentence of Section 20(B) of Act 135 of 1995 is amended to read:
"On or after July 1, 1998, a second review of the consumer finance industry shall be commenced by a legislative study committee in order to further study the impact of this act, any subsequent amendments to the consumer finance laws, and such other matters as the committee deems appropriate."
Savings clause
SECTION 4. If a provision of this act or its application to a person or circumstance is held to be unconstitutional or otherwise invalid, the remainder of this act and the application of that provision to other persons or circumstances are not affected, and it must be conclusively presumed that the General Assembly would have enacted the remainder of this act without the unconstitutional provision.
Time effective
SECTION 5. This act takes effect upon approval by the Governor and applies to causes of action, including appeals, pending on May 2, 1997. Any actions filed as class actions, without regard to certification, filed on or before May 2, 1997, may proceed, but with remedies pursuant to Section 37-10-105 as amended in Section 1 of this act. The three-year statute of limitations provided herein applies to all actions commenced after May 2, 1997. No inference should be drawn as to the applicable statute of limitations for any existing action.
Became law without the signature of the Governor -- 6/15/97.