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Washington amends and extends proclamations regarding state of emergency, garnishments, and accrual of interest
On October 2, the Washington governor issued Proclamation 20-49.9, which amends and extends proclamations 20-49.5, (which amends and extends garnishment proclamations) 20-05 (declaring a state of emergency) 20-49, 20-49.1, 20-49.2, 20-49.3, and 20-49.4 (regarding garnishments and accrual of interest). These proclamations were previously covered here, here, and here. The referenced proclamations are amended to (1) recognize the extension of statutory waivers and suspensions by the Washington legislature until the termination of the Covid-19 state of emergency or 11:59 p.m. on November 9, 2020, whichever is first, and (2) similarly extend the prohibitions therein until the termination of the Covid-19 state of emergency or 11:59 p.m. on November 9, 2020, whichever is first.
On September 28, the U.S. District Court for the Eastern District of New York dismissed a putative class action alleging a national bank’s subsidiaries and trustee (collectively, “defendants”) violated New York usury and banking laws by charging and receiving payments at interest rates above the state’s 16 percent limits. The defendants moved to dismiss the action, arguing that the claims are preempted by the National Bank Act (NBA) because the national bank parent company, which is located in a state that does not impose interest rate limits so long as the rate is disclosed to the borrower, owned the credit card accounts underlying the securitization, and would therefore not be subject to New York’s limitations. The court agreed with the defendants, concluding that the U.S. Court of Appeals for the Second Circuit’s decision in Madden v. Midland Funding LLC (covered by a Buckley Special Alert) supported the premise that the NBA preempts the usury claims. Specifically, the court noted that the case is distinguishable from Madden in that the national bank retained ownership of the credit card accounts throughout securitization and thus, “maintains a continuous relationship with the customer accounts that goes beyond its designation as originator of those accounts.” The court also rejected the plaintiffs’ unjust enrichment claim, because it was duplicative of the usury claim and therefore was also preempted. Thus, the court dismissed the action in its entirety with prejudice, noting that “any pleading amendment would be futile.”
On September 21, the U.S. District Court for the Western District of New York dismissed allegations against two entities affiliated with a national bank, and a trust acting as trustee of one of the entities, ruling that a plaintiff’s “state-law usury claims are expressly preempted by the [National Banking Act].” The court noted that, “[e]ven before the OCC issued its rule clarifying that interest permissible before a transfer remains permissible after the transfer, [the plaintiff’s] claims would have been preempted” because the national bank “continues to possess an ‘interest in the account.’” The plaintiff contended he was charged usurious interest rates that exceeded New York’s interest rate cap on unsecured credit card loans originated by the national bank. According to the opinion, one of the entities contracted with the bank to service the credit card loans, with the bank retaining ownership of the accounts. The plaintiff argued that the U.S. Court of Appeals for the Second Circuit’s decision in Madden v. Midland Funding LLC (covered by a Buckley Special Alert) supported his claims against the affiliated entities, but the court disagreed, ruling that the national bank retained interest in the loans, which included the right to “change various terms and conditions” as well as interest rates.
On May 19, the U.S. District Court for the District of Connecticut granted in part and denied in part parties’ motions for summary judgment in an FDCPA action concerning post-judgment interest. According to the ruling, the defendants—a debt buyer and an attorney who represents creditors, including the debt buyer, in collection actions—obtained a judgment from the Connecticut State Superior Court (state court) for the plaintiff’s unpaid credit card debt. The judgment awarded the defendant $33,921.25 plus post judgment interest under state law. While the complaint requested post-judgment interest of 10 percent—the maximum amount allowed by state law—the judgment did not reference a specific interest rate. After the defendants began charging post-judgment interest at 10 percent, the plaintiff filed suit alleging the defendant violated the FDCPA by using false, deceptive, or misleading representations or means in connection with the collection of any debt. The defendants sought clarification of the rate of post-judgment interest from the state court and received a clarification order stating that the state court “intended that the interest rate be set at the allowable rate of ten percent per year in accordance with the statute.” In its defense, the defendants asserted a bona fide error defense under the FDCPA, arguing, among other things, that they “erroneously believed that application of post-judgment interest at a rate of ten percent was neither false nor misleading because they relied on the state court’s judgment and Clarification Order, which explicitly provided for post-judgment interest at a rate of ten percent.”
The court partially granted summary judgment in favor of the plaintiff on her FDCPA claim, stating that the unilateral imposition of post-judgment interest at a rate of 10 percent per year, which was not awarded in the judgment, is a “clear violation” of the FDCPA that is not subject to the bona fide error defense. The court stated that the bona fide error defense does not apply in this situation because “the FDCPA violation resulted from the defendants’ mistaken belief that, absent a rate of post-judgment interest expressly set by the state court, defendants were entitled to set a rate at the maximum amount allowed under the statute.” According to the court, when a state court “fails to include a specific rate of interest based on the state law,” a debt collector may not apply a default interest rate. In holding that the FDCPA’s bona fide error defense is inapplicable here, the court extended the holding of the U.S. Supreme Court in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A. that the “bona fide error defense . . . is not available to debt collectors who misinterpret the legal requirements of the FDCPA,” to include misinterpretations of state law as well.
The court did, however, partially grant the defendant’s motion for summary judgment with respect to the application of pre-judgment interest.
On May 22, Washington governor Jay Inslee issued Proclamation 20-49.2 amending and extending proclamations 20-05 (declaring a state of emergency) and 20.49, and 20.49.1 (regarding garnishments and accrual of interest) until the earlier of the termination of the Covid-19 state of emergency or 11:59pm on May 27. Proclamations 20.49 and 20.49.1 were previously covered here and here.
On March 30, the U.S. Court of Appeals for the Second Circuit affirmed multiple orders issued by a district court in favor of an assignee mortgage holder (plaintiff), concluding that a borrower (defendant) was liable for interest at a default rate of 24 percent per year. After the defendant fell behind on his mortgage payments, the debt ultimately was assigned to the plaintiff, who initiated a foreclosure action. The plaintiff alleged a default date of February 1, 2008, and contended that the defendant was liable for interest at the 24 percent per year default rate. The district court granted the plaintiff’s motion for summary judgment, holding that the motion was supported by record evidence and that defendant’s affirmative defenses were meritless. The defendant’s motion for reconsideration was denied. A court-appointed Referee issued a report calculating the amount due on the note and mortgage, which the defendant appealed on several grounds, arguing, among other things, that (i) the plaintiff is a “debt collection agency” under New York City Administrative Code, and is precluded from taking action without being licensed; (ii) the 24 percent default interest rate applied by the Referee violates New York’s civil usury stature (which caps interest rates at 16 percent); and (iii) “the Referee erred by applying the default interest rate from the date of default rather than from the date of acceleration.”
On appeal, the 2nd Circuit concluded that, regardless of whether the plaintiff allegedly failed to obtain a debt collection agency license, the plaintiff was not necessarily barred from foreclosing on the mortgage and collecting the debt at issue. The appellate court also determined that New York’s civil usury statute “‘do[es] not apply to defaulted obligations . . . where the terms of the mortgage and note impose a rate of interest in excess of the statutory maximum only after default or maturity.” The appellate court further held that the mortgage note and agreement clearly stated that a lender is “entitled to interest at the [d]efault [r]ate . . . from the time of said default. . . .”
On March 12, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s decision that a debt collector (defendant) did not violate the FDCPA by mentioning that interest may accrue on an unpaid debt in a collection letter. In this case, the plaintiff alleged that the defendant violated the FDCPA’s prohibition on false, deceptive, or misleading representations in connection with the collection of a debt when it sent him a letter that included line items detailing the amount owed, separate line items that showed interest and fees as $0, and a disclosure that stated “[i]n the event there is interest or other charges accruing on your account, the amount due may be greater than the amount shown above after the date of this notice.” The plaintiff contended that the defendant was not allowed to collect interest on debts placed by the original creditor and that the original agreement between the plaintiff and the creditor “‘does not allow’ for interest to accrue or for other charges to be added.” The district court granted summary judgment for the defendant, stating that the letter accurately conveyed what was possible under the Texas Finance Code—that interest could accrue—and was therefore not false, deceptive, or misleading.
On appeal, the 5th Circuit affirmed the district court’s ruling, holding that “[t]he challenged statement in the letter is not false, deceptive or misleading because it merely expresses a common-sense truism about borrowing—if interest is accruing on a debt, then the amount due may go up.” [Emphasis in the original.] According to the appellate court, the “simple statement would have been clear even to an unsophisticated borrower. . . .” Moreover, the appellate court concluded that it did not matter whether the plaintiff’s agreement with the creditor prohibited interest or other charges “because the language at issue does not state that [the defendant or the creditor] would—or even could—collect interest.”
On February 24, the U.S. District Court for the District of Utah issued an order granting in part and denying in part a Wisconsin debt collection agency’s (defendant) motion for judgment on the pleadings in a suit concerning alleged FDCPA and state law violations. In 2019, the plaintiffs filed a lawsuit against the defendant—who had purchased the plaintiffs’ debts from various lending agencies—for attempting to garnish their wages to satisfy default judgments. The plaintiffs contended that the defendant violated Section 1692e(5) of the FDCPA and the Utah Consumer Sales Practice Act (UCSPA) because it operated as a collection agency in the state without being registered according to the Utah Collection Agency Act (UCAA). The defendant argued, however, that “failing to comply with the UCAA’s registration provision would not make it illegal for it to file debt collection actions in Utah,” and that “even if it is illegal to file suit while unregistered, courts cannot transform a UCAA violation into a private right of action under the FDCPA.”
The court determined that the plaintiffs adequately pleaded an FDCPA claim against the defendant for false, deceptive, or misleading representations, stating that it is illegal for a collection agency to file a debt collection action in Utah if it is not registered with the state according to UCAA provisions. According to the court, violating the UCAA’s registration provision “may provide a basis for finding an FDCPA violation when accompanied by the filing of a lawsuit to collect debt.” However, the court ruled that the plaintiffs failed to show that the defendant engaged in “deceptive and unconscionable sales practices” under the UCSPA. According to the court, the plaintiffs were “improperly attempting to transform a violation of the UCAA into a private right of action under the UCSPA” since they failed to plead sufficient facts to show that the defendant “knowingly made misleading statements or intended to deceive [the plaintiffs] regarding its registration or bond status.”
On January 21, a bipartisan collation of attorneys general from 21 states and the District of Columbia, along with the Hawaii Office of Consumer Protection, submitted a comment letter in response to the OCC’s proposed rule to clarify that when a national bank or savings association sells, assigns, or otherwise transfers a loan, the interest permissible prior to the transfer continues to be permissible following the transfer. (See Buckley Special Alert on the proposed rule.) The coalition, led by California, Illinois, and New York, urges the OCC to withdraw the proposed rule. Among their concerns, the AGs argue that the OCC’s proposal conflicts with the National Bank Act and Dodd-Frank, exceeds the OCC’s statutory authority, and is in violation of the Administrative Procedure Act. Specifically, the AGs claim that the proposed rule conflicts with National Bank Act (NBA) provisions that grant benefits of federal preemption only to national banks and no one else. Moreover, the AGs assert that Congress explicitly stated in Dodd-Frank that “that the benefits of federal preemption provided by the NBA accrue only to [n]ational [b]anks,” (emphasis in original) and argue that the proposed rule would contravene “this important limitation” and “cloak non-banks in [the NBA’s] preemptive power.” Moreover, the NBA sections say “nothing about interest chargeable by assignees, transferees, or purchasers of bank loans,” the AGs write.
The AGs also argue that the proposed rule would facilitate predatory “rent-a-bank schemes” by allowing non-bank entities to ignore state interest rate caps and usury laws. “The OCC has not addressed, even summarily, how the [p]roposed [r]ule, if adopted, will serve to incentivize and sanction predatory rent-a-bank schemes,” the AGs state. “This failure to consider the substantial negative consequences this rule would have on consumer financial protection across the country renders the OCC’s [p]roposed [r]ule arbitrary and capricious.” Furthermore, the AGs contend that the OCC’s proposed rule contains no factual findings or reasoned analysis to support its proposal to extend NBA preemption to all non-bank entities that purchase loans from national banks. “[T]his is beyond the agency’s power,” the AGs argue, asserting that “[t]he OCC simply ‘may not rewrite clear statutory terms to suit its own sense of how the statute should operate.’”
California Court of Appeal: Prejudgment interest accrual did not violate Rosenthal Fair Debt Collection Practices Act
On July 1, the California Court of Appeal for the Fourth Appellate District affirmed in part and reversed in part a previous superior court judgment in favor of a debt collector, holding that the debt collector did not violate the California Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act) by adding prejudgment interest from the date of charge-off to a consumer’s account, and reporting the account, with such additional interest, to several credit bureaus.
The lawsuit initially arose when the debt collector sued to collect the entire amount owed, and the consumer filed a cross-complaint alleging the debt collector had violated the Rosenthal Act, among other laws, by “‘falsely representing the character, amount, or legal status of the alleged debt,’ ‘failing to verify that the amount demanded was accurate,’ and ‘failing to provide an accurate accounting of the alleged debt.’” The superior court rejected the consumer’s claims and entered judgment in favor of the debt collector in the amount of the debt plus attorney’s fees.
On appeal, the Court of Appeal concluded that the debt collector did not violate the Rosenthal Act because the consumer failed to show that the original creditor waived the right to accrue additional interest on the account by not accruing the interest after charge-off. Moreover, the Court of Appeal noted that the statutory prejudgment interest rate is only available when there is no specified contractual rate. However, the Court determined that the debt collector did not improperly accrue interest when it applied a seven percent interest rate, as seven percent is lower than the statutory interest rate and the contractual interest rate. With respect to attorney’s fees, the Court of Appeal concluded the superior court improperly awarded fees associated with the legal action to collect the debt and the cross-complaint, noting that the superior court, “should have limited the fee award to time spent on efforts necessary to prove the allegations in the complaint.” Therefore, the court reversed the fee judgment and remanded the case back to superior court for “further consideration of the fee award in accordance with our narrower interpretation of the contractual fee provision.”
- Daniel R. Alonso to discuss "Independent monitoring in the United States" at the World Compliance Association Peru Chapter IV International Conference on Compliance and the Fight Against Corruption
- Jonice Gray Tucker to discuss "Cyber security, incident response, crisis management" at the Legal & Diversity Summit
- Jonice Gray Tucker to discuss "The future of fair lending" at the Mortgage Bankers Association Regulatory Compliance Conference
- Michelle L. Rogers to discuss "Major litigation" at the Mortgage Bankers Association Regulatory Compliance Conference
- Kathryn L. Ryan to discuss "Pandemic fallout – Navigating practical operational challenges" at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Daniel P. Stipano to discuss "BSA/AML - Covid impact and regulatory/guidance roundup" at an NAFCU webinar
- Daniel P Stipano to moderate "Digital identity: The next gen of CIP" at the American Bankers Association/American Bar Association Financial Crimes Enforcement Conference