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Financial Services Law Insights and Observations

District Court approves payday settlement

Courts State Issues CFPB CFPA Appellate Fifth Circuit Single-Director Structure UDAAP Enforcement Seila Law Payday Lending Settlement

Courts

On November 10, the U.S. District Court for the Southern District of Mississippi issued a final settlement order resolving allegations that a Mississippi-based payday lender violated the CFPA in connection with check cashing services and small dollar loans. As previously covered by InfoBytes, the CFPB filed a complaint against two Mississippi-based payday loan and check cashing companies for allegedly violating the CFPA’s prohibition on unfair, deceptive, or abusive acts or practices.

In March 2018, a district court denied the payday lenders’ motion for judgment on the pleadings, rejecting the argument that the Bureau's structure unconstitutional and that the agency’s claims violate due process. The U.S. Court of Appeals for the Fifth Circuit agreed to hear an interlocutory appeal on the constitutionality question, and, prior to the U.S. Supreme Court’s ruling in Seila Law LLC v. CFPB, a divided panel held that the CFPB’s single-director structure is constitutional, finding no constitutional defect with allowing the director of the Bureau to only be fired for cause (covered by InfoBytes here). The order noted that the 5th Circuit voted sua sponte to rehear the case en banc and issued an opinion in which the majority vacated the district court’s opinion as contrary to Seila Law. The majority did not, however, direct the district court to enter judgment against the Bureau because, though the Supreme Court had found that the director’s for-cause removal provision was unconstitutional, it was severable from the statute establishing the Bureau (covered by a Buckley Special Alert). The majority determined that the “time has arrived for the district court to proceed” and stated it “place[s] no limitation on the matters that that court may consider, including, without limitation, any other constitutional challenges.”

According to the settlement, the owner and president of the company must pay a civil money penalty of $899,350 to the Bureau “by reason of the [UDAAP violations] alleged in the Complaint.” However, the order further noted that the amount is remitted by $889,350 because he paid “that amount in fines to the Mississippi Department of Banking and Consumer Finance.” The district court also entered a separate order dismissing the lawsuit with prejudice.

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