45-1039. Licensees; violations; effect.

Violation of the Nebraska Installment Loan Act, except as provided by section 45-1058 in connection with any indebtedness, however acquired, shall not render such indebtedness void and uncollectible. If however, any interest or other charges have been collected or contracted for on such indebtedness, the licensee shall refund to the borrower all interest and other charges which have been collected, and shall not collect thereafter any interest or other charges contracted for and thereafter due on the loan involved, as liquidated damages, and the licensee or its assignee, if found liable, shall pay the costs of any action relating thereto, including reasonable attorney's fees. No licensee shall be found liable under this section if the licensee shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.

Source

Annotations

1. Retroactive legislation

2. 1963 amendments

3. Penalty

4. Usury

5. Miscellaneous

1. Retroactive legislation

Retroactive amendment of this section did not apply to transactions already reduced to judgment. Berg v. Midwest Laundry Equipment Corp., 178 Neb. 770, 135 N.W.2d 457 (1965).

Retroactive change in penalty for violation of Installment Loan Act sustained as constitutional. Davis v. General Motors Acceptance Corp., 176 Neb. 865, 127 N.W.2d 907 (1964).

Change in penalty was not retroactive as to prior contracts. Curtis v. Securities Acceptance Corp., 166 Neb. 815, 91 N.W.2d 19 (1958).

2. 1963 amendments

Legislature at 1963 Special Session changed penalty for violation of this section. Highway Equipment & Supply Co. v. Jones, 182 Neb. 234, 153 N.W.2d 859 (1967); Dailey v. A. C. Nelsen Co., 178 Neb. 881, 136 N.W.2d 186 (1965).

Legislative Bill 17 of the 1963 Special Session of the Legislature was sustained as constitutional. Kometscher v. Wade, 177 Neb. 299, 128 N.W.2d 781 (1964).

Amendment to this section in 1963 Special Session by Legislative Bill 11 was unconstitutional as special legislation. State Securities Co. v. Ley, 177 Neb. 251, 128 N.W.2d 766 (1964).

3. Penalty

Civil penalty can be imposed for violation of this act. State ex rel. Beck v. Associates Discount Corp., 168 Neb. 803, 97 N.W.2d 583 (1959).

Penalty applies to any person making installment loan in violation of act, whether licensed or not. McNish v. General Credit Corp., 164 Neb. 526, 83 N.W.2d 1 (1957).

Penalty applies where other business is conducted without consent of department. Grand Island Finance Co. v. Eacker, 155 Neb. 546, 52 N.W.2d 805 (1952).

4. Usury

Upon violation of provisions of Installment Loan Act, contract was void and indebtedness due thereunder was uncollectible. General Motors Acceptance Corp. v. Mackrill, 175 Neb. 631, 122 N.W.2d 742 (1963).

Any violations of Installment Loan Act renders indebtedness void and uncollectible. Robertson v. Burnett, 172 Neb. 385, 109 N.W.2d 716 (1961).

Charging usurious interest by nonlicensee rendered entire indebtedness void and uncollectible. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).

If exactions of interest are usurious, whole obligation is void and uncollectible. State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73 N.W.2d 673 (1955).

5. Miscellaneous

Where installment loan contract was dependent upon doing of an agreed upon condition which was never performed, there was no violation of this section. Metschke v. Marxsen, 176 Neb. 240, 125 N.W.2d 684 (1964).

The 1957 amendment to this section was unconstitutional. Thompson v. Commercial Credit Equipment Corp., 169 Neb. 377, 99 N.W.2d 761 (1959).