TITLE 28

COMMERCIAL TRANSACTIONS

CHAPTER 46

ADMINISTRATION

PART 1.

POWERS AND FUNCTIONS OF ADMINISTRATOR

28-46-111.  Injunctions against unconscionable agreements and fraudulent or unconscionable conduct including debt collection. (1) The administrator may bring a civil action to restrain a person to whom this part applies from engaging in a course of:

(a)  Making or enforcing unconscionable terms or provisions of regulated consumer credit transactions;

(b)  Fraudulent or unconscionable conduct in inducing debtors to enter into regulated consumer credit transactions;

(c)  Conduct of any of the types specified in paragraph (a) or (b) of this subsection, with respect to transactions that give rise to or that lead persons to believe will give rise to regulated consumer credit transactions; or

(d)  Fraudulent or unconscionable conduct in the collection of debts arising from regulated consumer credit transactions.

(2)  In an action brought pursuant to this section, the court may grant relief only if it finds:

(a)  That the respondent has made unconscionable agreements or has engaged or is likely to engage in a course of fraudulent or unconscionable conduct;

(b)  That the respondent’s agreements have caused or are likely to cause, or the conduct of the respondent has caused or is likely to cause, injury to debtors; and

(c)  That the respondent has been able to cause or will be able to cause the injury primarily because the transactions involved are consumer credit transactions.

(3)  In applying this section, consideration shall be given to each of the following factors, among others:

(a)  Belief by the creditor at the time regulated consumer credit transactions are made that there was no reasonable probability of payment in full of the obligation by the debtor;

(b)  In the case of regulated consumer credit sales, knowledge by the seller at the time of the sale of the inability of the buyer to receive substantial benefits from the property or services sold;

(c)  In the case of regulated consumer credit sales, gross disparity between the price of the property or services sold and the value of the property or services measured by the price at which similar property or services are readily obtainable in credit transactions by like buyers;

(d)  The fact that the creditor contracted for or received separate charges for insurance with respect to regulated consumer credit sales or regulated consumer loans with the effect of making the sales or loans, considered as a whole, unconscionable; and

(e)  The fact that the respondent has knowingly taken advantage of the inability of the debtor 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.

(4)  In an action brought pursuant to this section, a charge or practice expressly permitted by this act is not in itself unconscionable.

History:

[28-46-111, added 1983, ch. 119, sec. 3, p. 304.]