3. Washington has a history of repugnance toward roll overs and other practices of money lenders: “ ‘The loan shark has no regard for the disastrous economic effect of his illegally high rates or of his constant attempt to keep borrowers in debt by encouraging renewals, and by making difficult the payment of the principal of the obligation.’ ” Fin. Commerce, Inc. v. McLean, 73 Wash.2d 52, 53 n. 1, 435 P.2d 932 (1968) (quoting Stewart Lynch, Prosecuting the Automobile Loan Shark Under the Federal Mail Fraud Statute, published by The Conference on Personal Finance Law in 1945).
Johnson allowed her trailer to go into foreclosure, moved in with her father, and paid Cash Store $600 by
By , Ms. Although she had suffered from mild depression before receiving the loan, her symptoms had worsened as her financial situation became more hopeless. She stopped payment on the August postdated check to Cash Store. Subsequently, Cash Store employees allegedly left frequent telephone messages requesting payment. Ms. Johnson finally accepted a telephone call from a Cash Store employee in . This employee reportedly told her that if she did not pay the $575 and a returned check fee of $25, the matter would be turned over to the police, who would issue a warrant for her arrest. Ms. She now owes over $20,000 for the deficiency on the foreclosure.
A motion to vacate a default judgment pursuant to CR 60(b) is addressed to the sound discretion of the trial court. 2 Id. In deciding a motion to vacate, the court addresses two primary and two secondary factors that must be shown by the moving party: (1) that there is substantial evidence to support at least a prima facie defense to the claim asserted by the opposing party; (2) that the moving party’s failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the moving party acted with due diligence after notice of the default judgment; and (4) that the opposing party will not suffer substantial hardship if the default judgment is vacated. White v. Holm, 73 Wash.2d 348, 352, 438 P.2d 581 (1968); Norton, 99 Wash.App. at 123-24, 992 P.2d 1019. Establishment of the first factor avoids a useless subsequent trial. Griggs, 92 Wash.2d at 583, 599 P.2d 1289. The trial court examines the evidence and reasonable inferences in the light most favorable to the moving party to determine whether there is substantial evidence of a prima facie defense. Pfaff payday loans in Florida v. State Farm Mut. Auto. Ins. Co., 103 Wash.App. 829, 834, 14 P.3d 837 (2000). If a “strong or virtually conclusive defense” is demonstrated, the court will spend little time inquiring into the reasons for the failure to appear and answer, provided the moving party timely moved to vacate and the failure to appear was not willful. White, 73 Wash.2d at 352, 438 P.2d 581; Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd & Hokanson, 95 Wash.App. 231, 242, 974 P.2d 1275 (1999). However, when the moving party’s evidence supports no more than a prima facie defense, the reasons for the failure to timely appear will be scrutinized with greater care. White, 73 Wash.2d at 352-53, 438 P.2d 581.
Further, the report found that all the loan rates charged complied with chapter 31
Pursuant to RCW (3), a company engaged in the business of making small loans may advance money on the security of a postdated check, provided the time period between the date the loan is granted and the date of the postdated check does not exceed 31 days. A small loan is a loan up to $500 loaned for a period of 31 days or less. RCW (4). The loan company may charge interest or fees for small loans up to 15 percent (in the aggregate) of the principal amount borrowed. RCW (2). According to a report issued by the DFI after a 2000 audit of several Cash Stores in the state, Cash Store’s loans complied with state and federal rules for disclosure of loan origination fees, the amount financed, the finance charge, and the annual percentage rate. 45 RCW. The question before the trial court and this court is whether the DFI’s findings provide a defense to Ms. Johnson’s claim of unconscionability.
Any violation of chapter RCW substantially affects the public interest and is an unfair and deceptive practice for the purposes of the CPA. RCW ; RCW . Ms. Johnson claimed that Cash Store violated RCW (2) by, in effect, charging interest far exceeding 15 percent of the principal by renewing the loan every two weeks for an additional finance fee. Cash Store’s defense to this allegation was limited to its insistence that its payday loans comply with the relevant statutes and were approved by the DFI. In response to Ms. Johnson’s claim that she was threatened with criminal prosecution, Cash Store’s CEO, Mr. Ahlberg, stated that his company has never had a policy or procedure to threaten customers with criminal sanctions when they fall behind on payments. He added, “the evidence will show that The Cash Store did not harass, humiliate or make criminal threats to Ms. Johnson as alleged in the complaint.” CP at 47. Ms. Fish, the Pines Road Cash Store’s manager, also reported no policy to harass customers.
Ms. Fish’s failure to forward the summons and complaint to corporate counsel or to the Cottonwood administration-and her unexplained failure to forward the notice of a default hearing-constituted at least inexcusable neglect, if not willful noncompliance. See Commercial Courier Serv., Inc. v. Miller, 13 Wash.App. 98, 105-07, 533 P.2d 852 (1975) (defendant disregarded summons because he thought it was only a bluff). Because Cash Store failed to establish more than a prima facie defense to Ms. Johnson’s claims and did not satisfy its burden of demonstrating that its failure to appear and answer was occasioned by mistake, inadvertence, surprise, or excusable neglect, the trial court did not abuse its discretion in denying the motion to vacate the default judgment.
2. The rule provides that a court may relieve a party from final judgment for enumerated reasons, including “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.” CR 60(b)(1). The motion for relief of judgment must be made within one year after the judgment if based on the reasons stated in CR 60(b)(1). CR 60(b).