Cash Store filed a motion to vacate the default judgment less than a month after it received notice of the writ of garnishment. Addressing the prejudice factor, Ms. Johnson argued only that vacation of the judgment would prolong her dependence on her family and would “unnecessarily ? draw out a very painful, humiliating and distressing experience.” CP at 75. While delay in the proceedings is one of the evils addressed by the motion for default judgment, Griggs, 92 Wash.2d at 582, 599 P.2d 1289 (quoting Widucus v. Southwestern Elec. Co-op., Inc., 26 Ill.App.2d 102, 109, 167 N.E.2d 799 (1960)), vacation of a default inequitably obtained cannot be said to substantially prejudice the nonmoving party merely because the resulting trial delays resolution on the merits. Ms. Johnson fails to establish that she will suffer substantial hardship if the default judgment is vacated.
Consequently, the dispositive factors in the trial court’s decision to deny the motion to vacate are (1) the evidence to support at least a prima facie defense, and (2) whether Cash Store’s failure to appear was due to excusable neglect. We will examine the propriety of the trial court’s decision in both the order of default and the judgment awarding damages.
In its motion to vacate, Cash Store offered the following defenses to unconscionability: (1) its short-term loan operation has been specifically approved by the DFI; and (2) its loan procedures have been consistently upheld in other jurisdictions
I. Order of default. Cash Store contends it presented substantial evidence of a strong defense to Ms. Johnson’s claims. The first of these claims was a cause of action for unconscionability. Ms. Johnson alleged in her complaint that the consumer loan agreements she signed were so one-sided as to be unconscionable on their faces.
Assuming this notice was the first to reach upper administration, we find that Cash Store acted with due diligence after notice of the default judgment
Washington courts recognize two kinds of unconscionability: substantive and procedural. Tjart v. Smith Barney, Inc., 107 Wash.App. 885, 898, 28 P.3d 823 (2001). “Substantive unconscionability involves those cases where a clause or term in the contract is alleged to be one-sided or overly harsh, while procedural unconscionability relates to impropriety during the process of forming a contract.” State v. Brown, 92 Wash.App. 586, 601, 965 P.2d 1102 (1998). A contract or term is substantively unconscionable if it shocks the conscience, is “ ‘monstrously harsh,’ ” or is “ ‘exceedingly calloused.’ ” Nelson v. McGoldrick, 127 Wash.2d 124, 131, 896 P.2d 1258 (1995) (quoting Montgomery Ward & Co. v. Annuity Bd. of S. Baptist Convention, 16 Wash.App. 439, 444, 556 P.2d 552 (1976)). An example of a substantively unconscionable agreement is the mandatory arbitration clause cited in M.A. Mortenson Co. v. Timberline Software Corp., 140 Wash.2d 568, 587, 998 P.2d 305 (2000) (citing Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 254, 676 N.Y.S.2d 569 (1998)), which required the use of a French arbitration company, payment of a nonrefundable advance fee and travel fees, and payment of the loser’s attorney fees. Procedural unconscionability concerns the lack of a meaningful choice under the circumstances surrounding the transaction, including the manner in which the contract was entered, whether each party had a reasonable opportunity to understand the contract’s terms, and whether those terms were hidden in a maze of fine print. Mortenson, 140 Wash.2d at 588, 998 P.2d 305 (quoting Nelson, 127 Wash.2d at 131, 896 P.2d 1258).
Ms. Johnson alleged in her first cause of action that the consumer loan agreements were so one-sided as to amount to an absence of meaningful choice. She also alleged that the terms were unreasonably favorable to Cash Store, that she had absolutely no bargaining power, and that she did not understand the significance of the unconscionable terms. These allegations relate to procedural unconscionability. See Nelson, 127 Wash.2d at 131, 896 P.2d 1258. Additionally, Ms. Johnson’s allegations of exorbitant percentage rates could also support a claim of procedural unconscionability. Id. at 132, 896 P.2d 1258 (courts have held https://cashcentralpaydayloans.com/payday-loans-ms/ that grossly excessive prices render contracts unconscionable). Affidavits by Mr. Ahlberg, Cash Store’s CEO, state that Cash Store has worked closely with the DFI to make sure that its loan procedures comply with the state’s regulations and with chapter RCW, the statute authorizing small loans at higher interest rates.