*1 317 BAIRD, DENISE THOMAS and Respondents, Plaintiffs and v. BANK,
NORWEST
Appellant.
Defendant and
No. 91-224.
6,
June
1992.
Submitted
Rehearing
January
Denied
1993.
December
1992.
Decided
St.Rep.
49
1026.
Mont.
For Defendant Murfitt, Helena; and Reagor, E. Luxan & Hopgood argued, Dale Bacheller, Bacheller, Inc., Billings. Pierre L. Pierre L. argued, Motl David Respondents: Jonathan
For Plaintiffs and Motl, Wilson, Jr., Wright, Sherwood & Helena. Reynolds, K.W. Bennett, George T. Helena. For Amicus Curiae: Opinion delivered the of the Court. JUSTICE McDONOUGH Plaintiffs, Baird, brought and Denise this action to recover Thomas damages accelerating payment repos- Bank for from Norwest an sessing upon their truck and van a default under installment note. contract; damages breach complaint sought based on breach good dealing; faith and fair breach of the Montana covenant Act; fraud; and Unfair Trade Practices and Consumer Protection *3 The returned a ver- intentional infliction of emotional distress. $5,200 and for violation of the dict for the Bairds awarded them Act; $6,600 Montana Consumer Protection for breach of contract $27,000 fraud; $81,000 obligations; punitive damages. appeals. part part. Norwest We affirm in and reverse in The issues for our review are: support jury’s
1. Was there sufficient evidence to verdict that Bank Norwest breached contract? support jury’s
2. Was there sufficient evidence to verdict Norwest Bank committed fraud? support jury’s award of
3. Was there sufficient evidence to damages? emotional distress attorney allowing
4. Did Court err in the Bairds’ former the District testify expert as an witness? Trade Practices and Consumer Protec- 5. Does the Montana Unfair by loаns apply tion Act to consumer banks? install- provisions the default
6. Did Norwest Bank waive late accepting payments? ment note attorney’s appeal? be awarded fees on
7. Should Bairds damages punitive properly the District Court review 8. Did award? Baird, of a 1975
Plaintiffs, Denise were the owners Thomas and 1989, the early truck. In pickup a 1979 4-wheel drive Dodge van and $1,190.77 from Bairds of the truck failed and the borrowed front end (Norwest) money to fix the front end of and used the Norwest Bank security for the loan. The first put up truck was as a the truck. The paid on time. on this loan was payment 1989, failed and the Bairds engine on the truck April engine. replace the truck money additional from Norwest
borrowed $2,904.81 money and the was for the amount of The second loаn was truck and to the new repay purchase the first Norwest loan used to by a the van were secured note Both the truck and engine. beginning monthly set at security agreement payments $140.68 with May days late. The the second loan was eleven payment
The first on delinquent account twenty-two days late. payment was second Mosure collector named Sarah employee to a Norwest assigned was Mosure). (Ms. 24th, July became fifteen payment, the third due When on the overdue, procedures initiated collection days Ms. Mosure thereafter, telephoned Mr. Shortly Ms. Mosure Bairds’ account. Baird. decided central to the issues phone of that call was
The substance agreed that Mr. Baird and she Mosure maintained jury. Ms. 1st. brought up by Septеmber to date the account would be Sep- until agreed give them that Ms. Mosure Bairds maintained Septem- Ms. Mosure entered payment. 15th to make the tember computer. date on the bank agreed as the ber 1st date made, Nor- 12, 1989, had been payment when no September On the Bairds’ van. Norwest repossessed accelerated the note west could obtain they advised that the Bairds were maintained that On accelerated loan balance. by paying the of their van possession August July attempted to make the Bairds September deposit. Nor- night in the a check Norwest depositing payments attempted The Bairds to the Bairds. payments those west returned but payments October and November timely September, to make and were returned *4 rejected by Norwest were also payments those repossessed was also pickup the truck December them. On to the Bairds. without notice and the case was against Norwest brought this action
The Bairds Bairds, for the returned a verdict jury. jury The tried before the finding that had breached a contract with specifically Norwest fraud, Bairds, the Montana Unfair Trade committed violated (CPA). jury The Practice and Consumer Protection Act of 1973 its motion punitive damages. appeals Norwest the denial of awarded verdict, verdict, judgment jury on the and the for directed entered judgment and new trial. denial of its motions for NOV jury’s that support Was there sufficient evidence to verdict Norwest breached the contract? claim regard
Thе was instructed with to the breach of contract as follows:
INSTRUCTION NO. by you The issues to be determined in this case are these: obligations [D]id Defendant breach its contractual to Plaintiffs. you contract, If you find Defendant did not breach the will not If, however, you consider the issue farther. find such breach you consider, question namely: occurred will have a second damage your Was breach cause of to Plaintiffs? If question you to this answer was “no” will not consider the issue your further. If “yes”, you question answer is will have a third consider, namely: (You damages
What actual from arose breach of the contract: may damages not award for emotional damages puni- distress damages theory recovery. may tive under this You not award Act.) damages already awarded under the Consumer Protection The concluded that Norwest breached the contract and awarded $6,600 damages of to the Bairds. contends there complete part
Norwest was a failure on the prove agreed give Septem- Bairds to that Norwest the Bairds until bring their ber 15th loan current. Bairds contend that Ms. Mosure agreed payment September had to a date of 15th. testimony they of both Mr. and Mrs. Baird established that Mosure, Norwest, they
told Ms. collector for could make payment Repossession place September the 10th.” took on “after Poston, Bairds, testimony attorney of Mr. at one time the that a 15th date was supports September Bairds’ contention agreed to and Norwest breached contraсt. Norwest, addition, testimony Fangsrud, Jean also
322 they
established that the Bairds had told her promised pay by had to September 15:
Q. you contact, Can jury any, describe for the what if you had with either Tom or Denise Baird? only
A. The I day contact that had with them was the after the repossession. I first talked day to Denise and then later that I did talk to repossession. Tom reference to the
Q. you Would for jury describe the substance of the conversa- you tion that had with Mrs. Baird? Okay. me,
A. When Denise did call why she wanted to know that repossessed Norwest Bank had I explained the van. to her because there was a broken promise pay payments to for two and then she had also indicated going to me that Tom was to make the two I payments. also told her at thаt time that Norwest Bank will not accept delinquent payments. two The paid loan needed to be off full, plus expenses that Norwest Bank had incurred. Q. You informed Denise at that time payments, that two even if attempt the Bairds were to to make them that day, would not be accepted?
A. Correct.
Q. you Did have further conversation with Mrs. Baird? IA. don’t believe so.
Q. you Would you describe for the the conversation had with day? Mr. Baird later that
A. Mr. Baird had contacted me why and also wanted to know repossession had taken him place. explained happened, to what had promise pay the broken to He payments. two had told me that he did not promise pay September on 1 of ‘89. Because had not we that assigned possession. received it was out to take Q. However, Mosure, in reviewing the comments entered Sarah you contrary do find information to Mr. Baird’s assertion—
A. Yes. —Q. promise pay September that he did not on 1?
A. He had told Sarah that he would make payments September on 1. He said that paid September the doctors Q. not, recognize, you your You also do that in the course of disagreement with position conversation Mr. Baird was Sarah’s promised September that he had 1st?
323 Yes, promise pay A. he me he did not informed that make a September payments two on 1st.
Q. promised pay he you by September He informed had 15th? A. That’s what he informed me.
Q. only you dispute And information had would him was typed what Sarah had in?
A. Yes.
concluded that Norwest breached the contract and assessed
damages
$6,600.
for such
in the
amount
breach
applied
standard of review to be
here
forth
was set
in Barrett
200,
v.
(1990),
196,
1080;
ASARCO
1078,
Mont.
799 P.2d
(1991),
137,
Miller v.
Frasure
248 Mont.
P.2d
1261:
Substantial
*6
evidence is
evidence that a reasonable mind
might accept
adequate
conclusion;
as
to
a
support
it consists of
more than a mere scintilla
evidence but
bemay
somewhat less
(5th
than preponderance.
a
Dictionary
1979);
Black’sLaw
1281
Ed.
(Mont.
Stanhope
1990), [241
v. Lawrence
468],
Mont.
787 P.2d
1226, 1228-1229, 47
438, 440.
St.Rep.
Although may
it
be based on
evidence,
weak
conflicting
in order to rise to the level of
substantial
greater
evidence it
be
trifling
must
than
or frivolous.
(Mont.
Christensen v.
1990), [(1989),
393,]
Britton
140 Mont.
784
908, 913,
2223,
P.2d
St.Rep.
46
[Emphasis
2230.
added.]
Barrett,
196,
245 Mont.
this Court held reweigh “[t]his Court cannot the evidence or disturb the findings jury of a inherеntly impossible unless that evidence is so improbable to not be entitled to All parties agree belief.” of the that the payment by agreement date was extended. The contested fact Although is to what date. failed positively testify Bairds to to agreement an September date, with Norwest for a payment 15th after considering evidence, all ofthe we conclude there was evidence which might accept reasonable mind as adequate support to a conclusion a September payment 15th date. We hold that there was sufficient support jury’s evidence to verdict that Norwest breached the contract.
II support jury’s Was there sufficient evidence verdict that Norwest committed fraud?
The jury was instructed on fraud as follows: you
If find the parties agrеed payments that the late were 324 15,1989, you by September may then consider whether
to be made parties agreed you committed fraud. If find that the the Defendant 1,1989, to made then payments September that the late were be may fraud. you not consider whether the Defendant committed necessary further instructed on the nine elements The was recently elements actual fraud. This Court described the same establish (1989), 113,117, Cycle v. and Marine Batten Watts Mont. this case applicability P.2d 380-381. elements are: representation?
1. Was there repre- case alleged representation this was Norwest September it would allow the Bairds until 15th make sented that payment. parties in Issue I the found that the their Because 15th, this agreed payment to the datе element satisfied. representation false? 2. Was the
Again, disposed element is of under Issue I. this representation 3. Was the false material? September 15th payment
From it is clear that the date of the facts material. was falsity repre- as to speaker knowledge
4. Did the have of the sentation? words, Mosure, speaker, know that she was
In other did Ms. entered falsely representing agreed upon payment date when she A of the record September computer? 1st into the review knew the total of evidence that Ms. Mosure demonstrates absence falsity September 1 must conclude that date. We therefore satisfy Bairds failed to this element fraud. representation Did intend that the false should be speaker *7 reasonаbly con- upon by the and in the manner person acted templated? Mosure, Norwest, restate, agent did of intend that the
To Ms. Mosure upon representation act the false which Ms. Bairds should nothing in date? There is the September had made as to 15th Bairds Ms. Mosure intended act record to demonstrate that testimony fails date. Even the Bairds’ upon September 15th Mr. he Ms. Mosure that he this Baird testified told prove point. make He did not payment. after 10th to his September needed until September him 15th told he could have until testify that Ms. Mosure Mr. Baird asked her Ms. Mosure testified that payment. to make the 10th, payment to a date agreed until but that she if he could have under jury’s affirmed the verdict though the 1st. Even we have I, agreed 15th, parties payment September Issue that the date of absolutely no in the Mosure there indication record Ms. intentionally wrong computer. entered the date into the proving speaker’s
In are this element fraud it is the intent we That It jury concerned with. would be Ms. Mosure. is true that the agreed 15th, upon September found there was an date of but the able testimony was to consider all and evidence and the satisfy- at surrounding arriving circumstances that conclusion. ing particular only this element of fraud Ms. Mosure’s intent as the speaker may be considered. The record fails to reveal such intent Furthermore, on part. Ms. Mosure’s one no testified that Bairds were given intentionally wrong intentionally date or that Ms. Mosure wrong fact, entered the Not date. even the Bairds so testified. In only Bairds mistakenly wrong maintain that Ms. Mosure entered date. We conclude that the prove Bairds have failed to essential this element of fraud.
The Bairds failed to prove two of the essential required elements Therefore, under the instruction in order establish actual fraud. we hold that not support jury’s there was sufficient evidence to verdict that Norwest committed fraud and reverse on this issue.
We note damages that the awarded for fraud in the amount $27,000. issue, Because we reverse on this the District Court shall damages vacate the $27,000. awarded for fraud the amount of
Ill Was there sufficient evidence to support jury’s award of emo- damages? tional distress only damage might award on the verdict form which be
construed to include parasitic emotional damages distress was for fraud. Such award is II vacated Issue of this opinion. Therefore the issue is moot.
IV Did allowing the District Court err in the Bairds’ former attorney testify expert as an witness? Poston, attorney,
Mr. the Bairds’ first testified at trial about his involvement with the Bairds and about his contacts with Norwest attorney. and its Norwest expert. maintains that he testified as an It waiver, legal opinion maintains that he testified to his on the law self-help notice, repossession without and acceleration of a note.
326 Thus, eliciting this questions maintains that all of these Norwest testimony improper. were rule, attorney advise general states that as a an cannot
Norwest (1986), Ellinghouse v. law ofthe case. Ins. Co. as Safeco Mont, 251, 217, Mr. P.2d 224. Norwest maintains that 223 725 in case— testimony рertained legal to ultimate issues this Poston’s fairly in commerce under the Norwest acted the conduct of whether CPA; absent right repossess had the the vehicle whether Norwest notice; right to accelerate the and whether Norwest had waived its debt notice. absent to the only objection of Norwest’s counsel urge
The Bairds testimony of Mr. Poston was: may your opinion I that the offer of an object, honor. believe in in province determining
improperly invade facts added.] [Emphasis this case. Mr. objection no was made that
That was overruled and objection any legal testifying opinions. Poston was Norwest, made we objection limited counsel for view the allowing testify. Poston to no error Mr. hold that there was
V Trade the Montana Unfair Practices Consumer Does apply Act to consumer loans banks? Protection practices engaged entities prohibits unfair trade The CPA as “Trade or commerce” is defined follows: “trade or commerce.” (6) offering for advertising, mean the “Trade” and “commerce” any sale, property, tangible sale, or distribution of services article, real, mixed, any other or intangible, personal, or value, situate, include commodity, thing and shall or wherever indirectly affecting directly people or any trade or commerce of this state. 30-14-102, MCA.
Section money,taking loaning or not the question The first is whether money, are transactions within therefor, the collection of security has pre This Court not definition of trade commеrce. the above prohibiting practices unfair trade this issue. Statutes viously decided scope application broad in and flexible interpreted have to be been (3rd. Cir. See In re Smith to human inventiveness. respond so lenders is the sale mortgage The business of 1989), F.2d 576. 866 acts; Smith, practices see In Re of unfair scope a service within the (1972), Corporation v. Mobile Oil In the case of Garland supra. F.Supp argued apply in which Mobile the uniform act does not involving to debtor-creditor relations credit card transactions and collections, the court stated as follows:
Only artificially an narrow construction would hold that *9 applies broadly sale, statute to practices utilized to effect a but reach practice cannot the utilized in its financing. at money
Garland 1099. Here the loaned used the was consumer part at in for repairs engine private least and a new for motor vehicle.
Our statute does not in or anyway “any define limit the words in 30-14-102(6), MCA, services” as used Section or used in supra, as 30-14-133, MCA, Section which establishes the of cause action as- 30-14-133, MCA, serted here. Section so far as pertinent is as follows: (1)Any person purchases goods who or primarily leases or services personal, family, for purposes thereby or household suffers money loss property, ascertainable or or personal, real as a result employment by of the use or person method, act, another of a or practice declared may bring unlawful 30-14-103 an individual but not a class action -under the in procеdure rules civil county district court of the in which the seller or lessor resides or principal place has his doing business or is business to recover $200, damages actual or greater. may, whichever is The court in discretion, its award up to three times the damages actual sus- may provide tained and such equitable relief as it considers neces- n sary proper. or There no why is reason the word “services” as used in Section 30-14-102(6),MCA, interpreted differently be than as used in Section 30-14-133, MCA. defining to approach what is meant the word “services” in Smith, statute be scope. should broad in See In re supra. This being derogation law,
statute in liberally of the common should be object construed with a promote justice. view to effect its and to See 1-2-103, MCA, Section 1991.
Norwest has cited case of Riverside National Bank v. Lewis (Tex. 1980), money (borrowing 603 S.W.2d which held that money) “good” is neither or a “service” and stated: Money, money, obviously as quite is neither work nor labor. Seek- ing acquire money to seeking use of likewise not a work Rather, or labor. it to an attempt acquire is an item of value. We attempt money attempt acquire hold that an to borrow is not an either work or labor DTPA. contemplated 174. at Riverside
However, restrictively what the Texas statute defined more ser- case are under the statute. We note that Riverside states vices acquire seeking money attempt the use of is an an acquire case, its facts which of value. Riverside was later limited to item specific acquisition. credit unrelated to a Our were extension of MCA, “[s]ale, 30-14-102, defines or “commerce”as Section “trade” thing of [a] or distribution of... value.” expanded Texas the Texas Act include services of a
Later cases Security of credit. See Bank v. bank connection with extension 1991), This conclusion was (Tex.Ct.App. Dalton S.W.2d though at even the Texas Act defined “services” as follows: arrived (1) purchased real tangible property “Goods” chattels or means or leased for use.
(2) work, labor, or or service leased purchased “Services”means use, including services furnished connection with sale goods.... repair of
(4) (Consumer) individual, corporation, partnership, means an *10 state, or of this who seeks or agency this a subdivision state sеrvices, except lease, any goods or that acquires purchase or customer has assets of term does not include a business that million or more. . . . $25 Com., v. Bureau Consumer
In the case of Pa. Bankers Ass’n (1981), Pennsyl- Court of 427 A.2d the Commonwealth Protection activity that the Unfair Trade Practices Act the vania held under The court had collecting money is or commerce. lending and trade (1981), Retailers, etc. Lazin previously Pennsylvania held in v. within the 712, 718, lending collecting money was A.2d and of service. definition and Trade Practices Con- conclude that the Unfair
We therefore in by banks applies Act to consumer loans sumer Protection lending collecting and of such loans.
VI of the installment note provisions the default Did Norwest waive late by aсcepting payments? necessary I, is not to address under it light holding
In of our Issue this issue.
VII attorney’s appeal? Should Bairds be awarded fees on reversal, upon Norwest maintains that the Court should direct the attorney’s District Court to award its fees for Norwest both lower proceedings and the appeal court herein. parties stipulated
The maintain that the agreed Bairds to the attorney’s amount of fees which should be as plaintiffs awarded the prevailing party litigation. in the Court The District Bairds ask this grant attorney’s to them necessary Court their fees to defend this appeal with to proper stipulation amount be determined theof parties, necessary, by or if the District Court. provides
The attorney’s contract involved here fees to the prevаiling 28-3-704, MCA, party. provides Section that a contractual right attorney’s addition, CPA, is reciprocal. fees Section 30-14-133, MCA, the “prevailing party” attorney’s allows to recover fees. parties a stipulation attorney’s entered as to fees which
provides: parties
COMES NOW the through above named their counsel agree Plaintiffs, of record and stipulate prevailing as parties in this matter under the contract and Montana Consumer claims, Protection Act are entitled to sum of Nineteen ($19,000) Thousand Dollars attorney their reasonable fees and agree judgment further that the may entered herein be amended pro nunc tunc to allow for the attorney addition of that amount of fees. agreement
This prevailing is based on Plaintiffs’ status as party and the spеcified amount agreement this has no force effect appeal should an result in a reversal verdict under one of Plaintiffs giving or both the claims rise to rights attorneys’fees. Plaintiffs specified agreement The amount applies only attorney this through February 15, fees incurred day the last matter, apply any attorney trial this does not fees which may matters, including be incurred in post-trial appeal. par- *11 agree post-trial attorney ties to deal with all such at fees issues and appropriate appropriate [Emphasis time before the court. added.] there
Inasmuch as has been no reversal of the claims under which party fees, the prevailing attorney’s is entitled to reasonable plaintiffs appeal. аre entitled to their fees to defend this
330
VIII punitive damages review the properly Did the District Court award? fraud, the on the tort of having
This Court reversed verdict Due is and the issue is moot. punitive damages award of to be vacated was punitive damages is vacated and to the fact that award having jury in District Court included the total award taking the award post-trial in its on motions that it was stated order of awarding damages for violation into consideration in not treble consideration in its CPA, hereby remand to the District Court for we 30-14-133(1),MCA, damages under discretion to award treble Section may necessary in with further action as be conformance and for such opinion. this TURNAGE, HARRISON and GRAY
CHIEF JUSTICE JUSTICES concur. HUNT, TRIEWEILER, concurring by JUSTICE joined
JUSTICE part dissenting part. in IV, I, V, regarding I Issues majority’s decision concur with VI.
However, majority’s regarding decision Issues I dissent with fact-finding jury’s it II, III, believe disturbs the and VIII because continuously upheld the fundamental Court has process. This jury responsibility entrusted with the proposition that jury deliberation high regard for the seeking the truth. Because our exacting standard of review when process, we have established an examining jury’s a verdict. by the jury supported as not to set aside verdicts
Motions a proper only complete when there is absence evidence are all All evidence and support of the verdict. credible evidence light in a most therefrom must be considered inferences drawn greatest party. The courts will exercise to the adverse favorable constitutionally mandated interfering with the self-restrаint processes decision. 1051, (1983), 476, 479, P.2d 1053 Mont.
Lackey v. Wilson 191, (1983), 202 Power Co. Mont. Barmeyer v.Montana (quoting 597). 657 P.2d nature, circumstantial. fraud, very its will often be
Evidence remote, will occasions, trivial, facts disconnected On numerous Mink finding offraud. Walker v. support together be tied
331 (1945), 351, 158 analyzing P.2d When Instruction No. Mont. 630. only the that could whether the jury court indicated the consider if found they parties agreed committed fraud first that the that bank by September hearing late were due After payments the 15. much evidence, conflicting agreed the concluded that the the parties September finding, on an payments were due With this there was by bank implicit agreement repossess prior the to vehicle to not the agreed payment. However, proceeded the datе of the bank to repos only days agreement. the vehicle In making sess within few of addition, it would not be difficult infer from facts that the the time working pressures job type and of Ms. Mosure’s forced her to Septem 1 into the computer responsibility ber bank’s in order to clear her for delinquent collection of the Baird’s account. It the is from facts above I support believe there was substantial jury’s evidence to the verdict.
Therefore, I affirm would the decision of the District Court and the uphold entire verdict.
JUSTICE WEBER concurs and dissents as follows: - I dissent from holding majority opinion the ofthe on Issue V Does the Montana Trade Unfair Practices and Consumer Act Protection (MCPA)apply to consumer loans banks? I concur the of balance holdings majority of the opinion.
The majority concludes that MCPA applies consumer loans lending collecting banks in the and of such loans. I will first my summarize reasons for disagreeing with that conclusion. The primary question is whether a bank consumer loan falls within the provisions 30-14-133, MCA, of Section applies any person which purchases goods who or leases services primarily personal, or for family, purposes. majority or household has failed to demonstrate borrowing money how the of aby consumer purchasing leasing goods of or services. discussing
Before the specific statutory with which sections we are directly I involved, think it appropriate to make a few comments adopted about MCPA. That Act was 1973 with the aim trade prohibiting practicеs provisions investigation unfair with for practices penalties 30, Chapter such for violations. Title Parts forty-two 1-2.The Act has different sections which describe the means protecting part Department the consumer action on the of the General, Commerce, Attorney county attorneys fifty-six restraining These provide injunctions, counties. sections $10,000, possible criminal convictions orders, penalties up civil the Act is The basic thrust of imprisonment. fines with criminal through by enforcement various of the consumer protection governmental agencies. Act section in that which discussing specific the one code
Before consumer, apparent result of emphasize I applies to the “services” in the the broad definition of mаjority opinion. view of the Act to majority apply would majority opinion, assume that 1) loaning kind of banks following: all activities mortgage and other institutions, including aspects all of loan and 2) nursing by hospitals, of services security financing; types all *13 3) homes; rendered homes, types all of services and retirement accountants, architects, doctors, dentists, people as medical such in those “ser- The list is almost unlimited attorneys, engineers. and such Why important is it to consider might which be included. vices” attorney fees damages and The answer is the treble “services?” MCA, 30-14-133, are as follows: Section which provisions of (1)... discretion, three times up in award may, The court its may provide equitable and such damages sustained the actual necessary рroper. it considers or relief as (3) section, may court brought under this any action in attorney fees incurred reasonable prevailing party award the defending the action. prosecuting or by consumers under brought have been past, very
In the few actions damages and of both treble great Act. Because of the benefit against any of the fees, having those claims attorney suggest procedure is to seek will conclude that the best parties listed above in the striking change a the Act. I conclude that such to come under legislature. in should left to the practice Montana be are sections of the Act which particular discuss the I will not 30-14-133, section is Section directly key consumer pertinent. MCA, part: in provides pertinent which — — — attorney fees public agencies Damages notice to (1) purchases or Any person who judgment as evidence.
prior family, or personal, for primarily or services goods leases loss of any ascertainable thereby suffers purposes household method, person ... another a result of the use money ... as bring an may unlawful 30-14-103 act, declared practice or county in which court of the ... in the district individual... action resides . . . the seller or lessor applies any person purchases goods
This section who or leases or primarily personal, family, services purposes. or household Clear- ly making of a consumer loan from bank does not constitute a purchase goods or lease of nor a lease of remaining services. The question making is whether a consumer a bank loan has made a purchase pointed ofservices. As in majority opinion, out this issue has not considered in very jurisdictions been Montana and few other have considered the issue. majority upon relies Smith v. Banking Corp. Commercial
(3rd.Cir. 1989), 866 F.2d Pennsylvania which involves the con- protection sumer points statutes. Smith out that section 2 of the Pennsylvania act enumerates seventeen specific acts which con- deceptive stitute unfair or practices acts or points then out that Smith Fidelity’s contends that conduct falls within the catch-all provisions which make engaging any unlawful other fraudulent conduct which creates a likelihood of misunderstanding. confusion or (Purdon 1992) Sеe 73 Pa.Stat.Ann. Section Supp. 201-3 We have no specific provisions act of that nature in only our MCPA. The defini- tional statute regarding 30-14-103,MCA, unfair acts is Section which provides:
Unlawful practices. Unfair unfair competition methods of deceptive practices acts or the conduct of trade or commerce are unlawful.
I do not find it appropriate generalize to so accepting Pennsylvania cases, state, federal authority provisions where the central the act are so strikingly different. *14 (Tex. majority points out that in Riverside Nat’l Bank v.Lewis
1980), 603 S.W.2d the Texas court concluded borrowing that the (both money “good” was neither a or a “service” are used which 30-14-133, in MCA), Section and stated:
Money, money, quite obviously as is neither wоrk nor labor. Seek- ing acquire to money use of seeking likewise is not a of work Rather, or labor. it an attempt acquire an item of value. We attempt hold that an money attempt acquire to borrow is not an either work or labor as in contemplated the DTPA.
Riverside,
majority
Ultimately majority refers to 1981 money the definition of lending collеcting was -within held that our Montana Act and its proceeds and then to conclude that service strongly banks. I applies services to consumer loans definition of disagree with that conclusion. purchase has a of services where analyzing
In whether there been 30-14-133, MCA, loan, point out Section makes a consumer bank brought action is to be the district court provides that the usage, or lessor” resides. Under common county in which the “seller the term seller or lessor would be considered I do not believe that loans. which makes consumer including bank the extent ofthe regarding to reach a conclusion attempting Before as defined in Section leasing goods services purchase or section, MCA, under such 30-14-133, should also consider thаt we person who uses a against to recover another consumer is entitled unlawful under Section method, act, which is declared practice or MCA, determine what trade and 30-14-103, quoted above. order to 30-14-133, MCA, we must meant to be under Section commerce are 30-14-102, MCA, following which contains Section consider definition:
(6) offering for advertising, mean the “Trade” and “commerce” any tangible sale, any property, services and sale, or distribution of mixed, article, real, other persona, or intangible, or situate, value, and shall include commodity, thing of wherever or directly indirectly affecting people commerce or any trade or of this state. methods of com- wording it is clear that unfair statutory
From to those involved aсts are limited deceptive and -unfair or petition in Section 30-14- as defined of “trade” and “commerce” the conduct greater of that section requires This our consideration MCA. detail. defines as adver- 30-14-102(6),MCA, trade and commerce
Section property. services and sale, and distribution of offering for sale tising, not fit by a bank does face, making of a consumer loan On its sale, sale, offering advertising, the classification within there is no clear Because property. other of services or distribution loans or bank or loans or consumer include bank intent to stated history of the to consider the activities, I think it essential consumer it enacted. years since was during approximate MCPA *15 indicating a revision legislative no there has been Since 1973 purchase a constitute loan should intent that bank specific is for- That conclusion the MCPA. the definition of within services dining this regulations adopted of the consideration tified These of Montana. Commerce Department 20-year period of these 8.78.101-406, ARM. A number forth in are set regulations of mer- of the sale aspects refer to various specifically regulations regard with representations advertising and chandise, including its apply to which regulations Next, are a number there to the same. service sales, maintenance and repairs, and cover the motor vehicles to the services are limited regulations These vehicles. of motor such vehicles. sales, and maintenance of repairs conneсtion with the which agencies and fees covering reporting regulations are also There these Rules establishes directly A review of applicable. are not has been of Commerce part Department ofthe the enforcement on has not concluded Clearly Department limited. quite services under loan constitutes making of a consumer bank demonstrat- regulations other MCPA, they nor have established the MCPA. coming under services are considered ing that similar definition in Section oftrade and commerce again As I examine the Department 30-14-102(6), MCA, I the lead of would follow of services of the sale interpretation and limit the Commerce real, or intangible, personal tangible or relating property, services If thаt in commerce. mixed, and articles and commodities other 30-14-102(6), MCA, then the same applied to Section approach is 30-14-133, MCA. to Section properly applicable would be approach 30-14-133, MCA, the under Section properly could conclude that We purchase loan is not a money from a bank on a consumer borrowing of the reference is consistent with services. That conclusion goods history of the in the code section. view to “seller” or “lessor” majority con- impact of the twenty years, potential and the past ofwhether the determination clusion, legislature I leave to the would loans made the MCPAto consumer it to extend appropriate or not the state. rendered within types other of services by banks and to loans consumer apply does not that the MCPA would conclude by banks.