Page:State ex rel. Bryant v. R & A Investment Co.pdf/5

Rh  judgment, thereby concluding that the remedies for usury set forth in Ark. Const. art. 19, § 13, are exclusive, personal, and nonassignable. Although the trial court specifically found that "the [DTPA] and the Arkansas Constitution do not necessarily conflict," it nonetheless concluded "that the Constitution should prevail as the remedy for any alleged victims of [Mid South's] actions." Because the trial court also found that the facts alleged in the complaint supported a usury action, it concluded that the Attorney General lacked standing to bring suit under the DTPA.

[1] Summary judgment is appropriate when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). In making this determination, we view the evidence in the light most favorable to the parties resisting the motion, and resolve all doubts and inferences in their favor. Id. The State argues that the trial court erred in granting summary judgment by (1) concluding that the remedies for usury contained in art. 19, § 13, are exclusive, thereby barring its action under the DTPA to protect consumers from unconscionable trade practices; (2) finding that the Attorney General could not file suit under the DTPA because usury is a personal action; and (3) not concluding that Mid South's scheme of openly, continuously, and flagrantly flouting Arkansas usury law constitutes a public nuisance subject to abatement. We agree with the State and hold that the Attorney General has standing to enforce the provisions of the DTPA for unconscionable business practices involving usurious contracts. Because we reverse and remand on that basis, it is not necessary to address the State's pub.lic-nuisance argument.

Article 19, Section 13, of the Arkansas Constitution (as modified by Amendment 60) provides in relevant part:

"(a) General Loans:"

"(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract."