Objection was made to the admission of a business record of the plaintiff showing amounts owed and paid by the defendant. The ledger in question contained as its first entry and dated July 30, 1970, a balance of $329.40, lеss a credit of $42, leaving a balance of $287.40. This was the amount owed'under the first contract sued on which was executed on July 2, 1970. The defendant contends that as a matter of law the distance оf time between July 2, 1970, and July 30, 1970, is insufficient to comply with Code Ann. § 38-711 (Ga. L. 1952, p. 177). This Code section requires a showing that it was in "the regular course of business to make a memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.” It is urged that 28 days was not a reasonable time.
The reason for this requirement is so the entry might appear tо have taken place while the memory of the fact was recent, or the source from which the knowledge of it is derived was unimpaired. 17 ALR2d Anno. 235, 257. Redlich v. Bauerlee,
*696 It is urged that the trial judge erred in not finding for the defendant on her counterclaims and in entering judgment for the plaintiff in the amount sought. Since thеse issues are interrelated, we consider them together.
The Georgia Retail Instalment and Home Solicitation Sales Act provides: '"Retail Instalment contract’ or 'contract’ meаns an instrument or instruments creating a purchase money security interest. It does not include a revolving account or an instrument reflecting a sale pursuant thereto.” Code Ann. § 96-902 (7) (Ga. L. 1967, pp. 659, 660; 1968, p. 1088). A revolving account is defined as an instrument or instruments prescribing the terms of retail instalment transactions which may be made thereafter, from time to time pursuant thereto. Code Ann. § 96-902 (8). In short, a revolving account is based on a series of transactions which may occur in the future. The Federal Truth in Lending Act also contemplates two different types of accounts. The key term under the Federal Act is "Open End Acсount” which means: "Consumer credit extended on an account pursuant to a plan under which (1) the creditor ■may permit the customer .to make purchases or obtain loans, from time to time, directly from the creditor or indirectly by use of a credit card, check, or other device, as the plan may provide; (2) the customer has the privilege of paying the balance in full оr in instalments; and (3) a finance charge may be computed by the creditor from time to time on an outstanding unpaid balance. The term does not include negotiated advances under an open end real estate mortgage or a letter of credit.” Regulation Z, 12 CFR §226.2 (r). Other credit arrangements are covered under "Credit Other Than Open End.”
A sound explanation of the distinction betwеen "open end” and other credit is contained in the interpretation of 15 USCA § 1602 found in 12 CFR § 226.203 (b, c) (34 FR 8698, June 3, 1969)-. "In certain cases, a form of contract or note relating to a single transaction providеs that the finance charge will be computed from time to time by application of a rate to the unpaid balance and stipulates *697 required minimum periodic payments. However, thе obligor has the privilege of making larger and more frequent payments than stipulated or paying the obligation in full at any time without penalty. The question arises as to whether the creditor should mаke disclosures in such circumstances under § 226.7 for open end credit accounts or under § 226.8 for credit other than open end. Although the terms of such a contract or note meet the seсond and third requirements for such a plan, they do not meet the first of such requirements nor the basic qualification that consumer credit be extended on an account pursuant to a plan. [See Regulation Z, § 226:2 (r) quoted above.] Therefore, disclosures in this case are required to be made under § 226.8.”
In this case, plaintiff’s suit was brought on two contracts, not on an account. The contrаcts in question created a security interest, leaving title in the seller until the purchase money is paid. The contracts used the terminology inherent in an instalment contract and used the noticе required under Code Ann. § 96-903 (Ga. L. 1967, pp. 659, 663; 1970, p. 98) for retail instalment contracts. Furthermore, the contracts in question make no mention of any arrangement for future transactions. Therefore, it is clear that undеr the Federal lav/ these contracts are "contracts other than open end,” and under the State law they are retail instalment contracts.
However, these contracts provide for a finance charge which is appropriate to a revolving account; that is, they allow an annual percentage rate of 18% computed on the unpaid balanсe. See
Code Ann.
§ 96-904 (Ga. L. 1967, pp. 659, 667; 1970, pp. 98, 100). This is a clear violation of the Georgia law which states that a retail instalment contract may charge a time price differential which shall not exceed: "On the unpaid balance, 12 cents per $1 per year on so much of the unpaid balance as does not exceed $400; and 10 cents per $1 per year on so much of the.unpaid bаlance as exceeds $400.”
Code Ann.
.§96-903 (d). Under
Code Ann.
§ 96-910 (Ga. L. 1967, pp. 659, 672), a violation of
Code Ann.
§ 96-903 (d) shall bar recovery of any finance charge,
*698
delinquency or collection charge on the contract. See
Reese v. Termplan, Inc., Bolton,
We also find merit in the defendant’s counterclaim based on violations of the Federal Truth in Lending Act and Regulatiоn Z. A contract other than open end requires certain disclosures and certain terminology to be utilized in making such disclosures. The contract in question violated several of the provisions of 12 CFR § 226.8 (b) and (c) by failing to use the terminology required. For example, we point out a few of these discrepancies: The contract fails to use the term "Total of Payments” as required by 12 CFR § 226.8 (b) (3); the сontract also fails to use the terms "Cash Price” required by (c) (1); "Unpaid Balance.of Cash Price” required by (c) (3); and "Amount Financed” required by (c) (7). 15 USCA § 1640 imposes civil liability on a creditor who fails to disclose any information required under this Chapter and allows an amount equal to the sum of twice the amount of the finance charge but not less than $100 or more than $1,000. An action to recover under this sеction may be brought in a U. S. District Court or any other court of competent jurisdiction within one year of date of the violation. 15 USCA § 1640 (e). A creditor may escape liability if within 15 days of discovering an еrror and prior to the institution of the action under this section he notifies the person of the error and makes necessary adjustments. 15 USCA § 1640 (b). This was not done in this case. 15 USCA § 1640 (c) provides: "A creditor may not be held liable in any action brought under this section for a violation of this chapter if the creditor shows by a preponderance of evidence that the violation was not intentionаl and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” This section places the burden on the crеditor and in effect *699 means that when a violation is shown the debtor has a prima facie right to recover. Here violations were shown and the creditor made no effort to show that the viоlations were not intentional. Hence, the plaintiff was entitled to recover the $100 sought under each contract.
With regard to the counterclaims seeking recovery under the Georgiа law, we find them to be without merit.
Code Ann.
§ 96-910 (c) states: "In case of a wilful violation of any provision of this Chapter, with respect to any transaction, the retail buyer in such transaction may recover frоm the person committing such violation (or may set off or counterclaim in any action by such person) a minimum of $100 . . .” As can he seen the Georgia law is not worded like the Federal law and requires that there be a wilful violation. "'The general rule is that mere violation of instructions, orders, rules, ordinances, and statutes, and the' doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute wilful misconduct; and where the misconduct consists of a failure or refusal to perform a duty required by statute, a bare failure, or refusal, without more, does nоt constitute a wilful failure or refusal to perform such duty. Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty required by statute . . .”
Gooseby v. Pinson Tire Co.,
The judgment is affirmed on. the condition that the amount of $79.78 included as finance charges and. the *700 amount of $200 which should have been imposed as a civil penalty for the plaintiff’s violation of the Truth in Lending Act be written off within 15 days after the remittitur is made the judgment of the trial court; otherwise reversed.
Judgment affirmed on condition.