Friday, March 5, 2010

Substantive Unconscionability in Credit Card Terms

One of the rare cases finding credit card interest rates and penalties unconscionable was Discover Bank v. Owens (Cleveland Muni. Ct. 2004). The court recounted the facts disclosed at trial as follows:
[I]n January 1996 Owens received her Discover card statement, which showed a new balance of $1,460.73. The statement further reflected that her credit limit was set at $1,900. Owens had not used the credit card the previous month, but had incurred monthly finance charges. Additionally, her account was debited $10.34 for a Discovercard product called CreditSafe Plus, which evidently would put her payments and finance charges on hold without affecting her credit rating should she become unemployed, hospitalized, or disabled. Presumably, since Owens was on Social Security Disability and already unemployed, the CreditSafe product pertained only to the eventuality of her becoming hospitalized. The January 1996 statement further reflected a timely payment on her account.
{¶ 7} From January 1996 to March 1997, Owens did not make any purchases on her Discovercard. She continued to incur monthly debits for the CreditSafe Plus product and continued to incur monthly finance charges on the balance due on the account. During this time period,Owens did make payments on her account, but on several occasions (as set forth in the credit card agreement) she incurred additional fees for being late with her payments.
{¶ 8} On March 27, 1997, Owens used her card for the last time, taking a $300 cash advance from Sears. With that transaction, her April 1997 statement showed that she now had a new balance of $1,895.53.
{¶ 9} In May 1997 Owens made another payment; however, it was less than the minimum payment due. As a result she incurred another late-payment fee. Without making any purchases or taking any further cash advances, but with the accrual of monthly finances charges, Owens's balance now rose to $1,962.82. Because these additional charges had now put her over her credit limit, Owens incurred an additional $20 over-limit fee.
{¶ 10} Over the next six years Owens continued to make payments on her account, but because of finance charges and fees her balance was never again to be under her credit limit of $1,900. Despite never using her credit card again, Owens was charged a monthly over-limit fee ranging from $20 to $29 per month. From May 1997 to May 2003, Owens was assessed a total of $1,518 in over-limit fees from the time her balance went above $1,900 because of accrued finance charges in May 1997.
{¶ 11} During this time period, despite the growing record of payment difficulties, Discover also continued to debit Owens's account for its CreditSafe Plus product. From May 1997 to May 1999, Owens was charged a total of $369.52 for a product which, despite her being on Social Security Disability, evidently did not apply to her credit predicament.
{¶ 12} During this six-year period, Owens continued to attempt to meet her obligation and did make numerous payments. From May 1997 to May 2003 Owens paid Discover a total of $3,492. Since many of the payments were below the minimum monthly payment required and because others monthly payments were in fact not timely made, Owens further was assessed numerous late-payment fees, which over the six-year period totaled $1,160.
{¶ 13} In short, despite never using the credit card again and having paid $3,492 on a $1,900 debt, with all the fees and accrued finance charges, Owens was nevertheless faced with a $5,564.28 balance still owing on the account.
{¶ 14} How does something like this happen? Had Owens simply stopped paying on her account in May 1997, as perhaps some unscrupulous person might have considered, her account would have been closed and charged off at approximately $2,000, an amount thatDiscover would have sought to collect at the court seven years ago. If common practice at the court is any indicator at all, Discover might have readily agreed to negotiate a settlement at a small fraction of the amount due. Discover perhaps would have been surprised, but most likely content, to collect the entire amount, but most certainly it would never have anticipated collecting nearly 75 percent over what was owed in the first place.
{¶ 15} But because Owens was not unscrupulous and evidently did her absolute best despite being on Social Security Disability, she found herself in debt so deeply that she ultimately came to the sad conclusion that it was a debt out from under which she could never climb. The court does not have before it the records prior to January 1996 to know just what Owens may have purchased for a few hundred dollars using her Discover card. Whatever it was it certainly cannot have been worth the thousands of dollars she actually paid and most certainly was not worth the additional thousands of dollars still expected today by Discover.


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