(Ga. L. 1967, p. 659, § 10; Ga. L. 1996, p. 1506, § 1.)
Law reviews.- 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).
Cases do not apply to truth-in-lending situations.
- 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).
Violation is determined by amount charged, not amount collected.
- 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).
Acceleration clause is not violation until collection of unearned interest attempted.
- 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).
Premature acceleration of entire unpaid balance bars recovery of charges.
- 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).
Recovery of amount equal to cash price.
- 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 or hazardous acts are not willful.
- 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).
Bare failure or refusal to perform duty is not willful.
- 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 in calculating interest rebate is not willful.
- 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.