2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 1 - Retail Installment and Home Solicitation Sales
§ 10-1-15. Criminal and Civil Penalties

1. Any person who shall willfully and intentionally violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00 for the first offense and shall be punished as for a misdemeanor for each subsequent offense.
2. A violation of subsection (d) of Code Section 10-1-3 shall bar recovery of any finance charge, delinquency, or collection charge on the contract. A violation of subsection (b) of Code Section 10-1-4 shall bar recovery of any finance charge, delinquency, or collection charge stated on or collected in connection with the statement on which any such violation shall occur.
3. In case of a willful violation of any provision of this article, with respect to any transaction, the retail buyer in such transaction may recover from the person committing the violation (or may set off or counterclaim in any action by such person) a minimum of $100.00 or double the time price differential and any delinquency charge and any attorneys' fees and court costs charged and paid with respect to such transaction; but the retail seller may recover from the retail buyer an amount equal to the cash price of the goods or services in such transaction and the cost of any insurance purchased by the retail seller for the retail buyer in connection therewith.
4. Notwithstanding this Code section, any failure to comply with any provisions of subsection (d) of Code Section 10-1-3 may be corrected within ten days after the date of execution of the retail installment contract by the buyer; and, if so corrected, neither the seller nor the holder is subject to any penalty under this Code section.
5. A seller or holder shall not be held liable in any action brought under this Code section for a violation of this article if the seller or holder shows by clear and convincing evidence that the violation was not intentional and resulted from a bona fide clerical or typographical error.
6. The penalties under this Code section shall be the sole remedy for violations of this article and a claim of violation of this article may be asserted in an individual action only.

(Ga. L. 1967, p. 659, § 10; Ga. L. 1996, p. 1506, § 1.)

- For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B. J. 43 (1987). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Legislative intent as to proof of willful violation.

- Legislature obviously intended that there be some showing that the violation be "willful" other than the mere fact of the violation itself. Martin v. Glenn's Furn. Co., 126 Ga. App. 692, 191 S.E.2d 567 (1972).

- This section deals specifically with the terms of the contract. Truth-in-lending violations have no direct effect on the contractual terms of payment. Thus, cases involving this section are not authority regarding truth-in-lending situations. First Citizens Bank & Trust Co. v. Owings, 151 Ga. App. 389, 259 S.E.2d 747 (1979).

- The amount that a creditor may ultimately collect is not determinative of whether the creditor violates this article. Rather, it is the amount that a creditor charges the debtor at the time the creditor accelerates the unpaid balance that places the creditor in violation of this article. Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223, 223 S.E.2d 261 (1976).

- An acceleration clause purporting to collect unearned interest does not violate Ga. L. 1967, p. 659, § 1 et seq., but the same clause plus an attempt under it to collect unearned interest does; once the creditor uses that clause to demand unearned interest, the clause states a default charge. Thomas v. Universal Guardian Corp., 144 Ga. App. 869, 243 S.E.2d 101 (1978).

Acceleration by the seller plus filing a complaint against the buyer without deducting unearned interest from the alleged indebtedness constituted a "charge" by the seller in violation of the Retail Installment and Home Solicitation Sales Act, O.C.G.A. § 10-1-1 et seq., and such conduct amounted to a willful violation of the Act. Palace Indus., Inc. v. Craig, 177 Ga. App. 338, 339 S.E.2d 313 (1985).

- To accelerate the entire unpaid balance as due long before the time provided in the contract obviously discloses a claim exceeding the maximum finance charge allowable, which, under provisions of this article, shall bar recovery of any finance charge, delinquency, or collection charge on the contract. Reese v. Termplan, Inc., 125 Ga. App. 473, 188 S.E.2d 177 (1972).

- This section does not bar the seller from recovering an amount equal to the cash price of the goods. Fluellen v. Commercial Credit Corp., 151 Ga. App. 373, 259 S.E.2d 648 (1979).

- Mere violations of this article and the doing of hazardous acts, where the danger is obvious, do not, without more, as a matter of law, constitute willful misconduct. Martin v. Glenn's Furn. Co., 126 Ga. App. 692, 191 S.E.2d 567 (1972).

- When the misconduct consists of a failure or refusal to perform a duty required by this section, a bare failure or refusal, without more, does not constitute a willful failure or refusal to perform such duty. Such violations, failures, or refusals generally constitute mere negligence, and such negligence, however great, does not constitute willful misconduct, willful failure, or refusal to perform a duty required by this section. Martin v. Glenn's Furn. Co., 126 Ga. App. 692, 191 S.E.2d 567 (1972).

- Violation of this article in calculating the interest rebate does not constitute a willful violation of this article and it is not a defense to the grant of a writ of possession in the goods in which a secured creditor holds the security interest. Fluellen v. Commercial Credit Corp., 151 Ga. App. 373, 259 S.E.2d 648 (1979).

Cited in Bell v. Loosier of Albany, Inc., 237 Ga. 585, 229 S.E.2d 374 (1976); Bell v. Loosier of Albany, Inc., 140 Ga. App. 393, 231 S.E.2d 142 (1976); Liberty Loan Corp. v. Childs, 140 Ga. App. 473, 231 S.E.2d 352 (1976); Vikowsky v. Savannah Appliance Serv. Corp., 179 Ga. App. 135, 345 S.E.2d 621 (1986).

RESEARCH REFERENCES

ALR.

- Right to private action under state consumer protection act, 62 A.L.R.3d 169.

Coverage of insurance transactions under state consumer protection statutes, 77 A.L.R.4th 991.

What constitutes Truth in Lending Act violation which "was not intentional and resulted from bona fide error not withstanding maintenance of procedures reasonably adapted to avoid any such error" within meaning of § 130(c) of Act (15 USCA § 1640(c)), 153 A.L.R. Fed. 193.