5-5-201. Effect of violations on rights of parties.

Statute text

(1) If a creditor has violated the provisions of this code applying to limitations on the schedule of payments or loan term for supervised loans contained in section 5-2-308 or authority to make supervised loans contained in section 5-2-301, the consumer is not obligated to pay the finance charge and has a right to recover from the person violating this code or from an assignee of that person's rights who undertakes direct collection of payments or enforcement of rights arising from the debt a penalty in an amount determined by the court not in excess of three times the amount of the finance charge. With respect to violations arising from consumer credit transactions made pursuant to revolving credit accounts, no action pursuant to this subsection (1) may be brought more than two years after the violation occurred. With respect to violations arising from other consumer credit transactions, no action pursuant to this subsection (1) may be brought more than one year after the due date of the last scheduled payment of the agreement with respect to which the violation occurred.

(2) A consumer is not obligated to pay a charge in excess of that allowed by this code, and if a consumer has paid an excess charge he or she has a right to a refund. A refund may be made by reducing the consumer's obligation by 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 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 consumers arising from the debt.

(3) 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 that person a penalty in an amount determined by a court not exceeding the greater of either the amount of the finance charge or ten times the amount of the excess charge. If the creditor has made an excess charge in deliberate violation of or in reckless disregard for this code, the penalty may be recovered even though the creditor has refunded the excess charge. No penalty pursuant to this subsection (3) may be recovered if a court has ordered a similar penalty assessed against the same person in a civil action by the administrator described in section 5-6-114. With respect to excess charges arising from revolving credit accounts, no action pursuant to this subsection (3) 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 (3) 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.

(4) Except as otherwise provided, no violation of this code impairs rights on a debt.

(5) If an employer discharges an employee in violation of the provisions prohibiting discharge contained in section 5-5-107, the employee may within ninety days bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall not exceed lost wages for six weeks.

(6) If the creditor establishes by a preponderance of evidence that a violation is unintentional or the result of a bona fide error, notwithstanding the maintenance of procedures reasonably adopted to avoid the error, no liability is imposed under subsections (1) and (3) of this section, and the validity of the transaction is not affected.

(7) In any case in which it is found that a creditor has violated this code, the court may award reasonable attorney fees incurred by the consumer.

(8) If a creditor repeatedly fails to provide a consumer with a statement of an annual percentage rate or finance charge as and to the extent required by the provisions on disclosure contained in section 5-3-101 of this code and has received written notice from the administrator of such repeated failure, any such subsequent failure by the creditor shall relieve any consumer receiving such defective disclosure from any obligation to pay any finance charge in connection with such consumer credit transaction.

History

Source: L. 2000: Entire article R&RE, p. 1240, 1, effective July 1.

Annotations

Editor's note: This section is similar to former 5-5-202, as it existed prior to 2000.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).

Annotator's note. Since 5-5-201 is similar to 5-5-202 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.

Section 5-5-204(2) is interpreted to be as "otherwise provided" under subsection (5) of this section, which states that "except as otherwise provided, no violation of this code impairs rights on a debt". Strader v. Beneficial Fin. Co., 191 Colo. 206, 551 P.2d 720 (1976).

Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 preempted plaintiff's claims against a Delaware bank that the bank's late charges violated this section and 5-5-203. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994).

"Interest" under 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 includes late fees and, therefore, Colorado law is preempted by the federal law with respect to late charges. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994).

Plaintiff's common law challenges were preempted by 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 since that law creates an exclusive federal remedy and an exclusive federal remedy is inconsistent with the idea that a plaintiff can seek relief under state common law theories. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994).

Applied in Greeley Nat. Bank v. Sloan, 677 P.2d 409 (Colo. App. 1983).