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Consumer Arbitration Agreements: 4.3.4.1a Proof the Individual Visited the Website

The defendant has the burden of proof to show that it was this consumer that clicked on the website, and not some other person or even the entity operating the website impersonating the consumer.70 Even when the defendant presents evidence that the consumer was the one visiting a website, such evidence may end up being bogus or even fraudulent in a surprising number of cases.

Consumer Arbitration Agreements: 4.3.4.1 General

Arbitration agreements are increasingly being presented to consumers and workers electronically, often when the consumer or worker visits a website.59 The rules as to the formation of such electronic arbitration agreements are the same as for paper ones—the agreement is not binding unless properly formed under state law.

Consumer Arbitration Agreements: 4.3.4.3 Sign-in-Wrap

A “sign-in-wrap” agreement is like a click-wrap agreement in that the consumer must click a button to agree to a transaction, and text somewhere on the page informs consumers that by pressing the button the user assents to the linked terms and conditions. But sign-in-wrap agreements differ from click-wrap agreements in that the button the user is clicking is not labeled “agree” or “accept,” and is a button the user would have had to press anyway in order to obtain the desired service or product.

Consumer Arbitration Agreements: 4.3.7.2 Fraud in the Inducement

A different kind of fraud, fraud in the inducement, occurs when a party makes misrepresentations about the benefits or nature of a transaction that induces the other party to assent to the agreement. Unlike fraud in the factum, this fraud does not involve trickery about what the other party is agreeing to, but rather involves trickery about why that party should agree.

Fair Credit Reporting: 5.3.5 Real Estate Settlement Procedures Act Restrictions

The Real Estate Settlement Procedures Act (RESPA)339 provides certain protections regarding billing errors, disputes, and adverse consumer reports that involve home mortgage payments. These include purchase money mortgages, home improvement loans secured by a residence, home equity loans, and other first and junior loans secured by the consumer’s dwelling.

Consumer Arbitration Agreements: 4.6 Illusory Agreements

If an arbitration agreement is subject to change by one party without the consent of the other, it may be viewed as illusory and not effective. When a promise puts no constraints on what a party may do in the future—in other words, when a promise, in reality, promises nothing—it is illusory, and there is no consideration.218

Consumer Credit Regulation: 9.3.29 Nebraska

Payday lending is technically legal in Nebraska under the Delayed Deposit Services Licensing Act,380 but a successful 2020 ballot initiative limited annual percentage rates to 36%.381 A lender may not hold more than two checks from a borrower at one time.

Consumer Credit Regulation: 9.3.31 New Hampshire

Payday lending is technically legal in New Hampshire but has been eliminated by a 36% rate cap.410 The statute provides that a lender may not loan more than $500 to a given borrower,411 and a lender may not make more than one loan at any time “for the purpose of increasing charges.”412 Additionally, a lender is not permitted to make a loan to a borrower who currently has, or has had within the previous sixty-day period, an outstanding payday or tit

Consumer Credit Regulation: 9.3.33 New Mexico

Payday lending used to be authorized by statute in New Mexico, but in 2017 the legislature enacted small loan law reforms that effectively eliminated short-term payday loans.424 The amendments, which became effective on January 1, 2018, limit the maximum finance charges on all installment loans under $5,000 to an annual percentage rate of 175%.425 An installment loan is defined as one that is to be repaid in a minimum of four substantially equal payments of principal and interest with an initial

Consumer Credit Regulation: 9.3.37 Ohio

The laws governing payday lending in Ohio were revamped in 2018. Payday lending is now permitted under the Short-Term Lender Act (STLA).454 The Act allows for loans of up to $1,000 with a maximum term of twelve months.

Consumer Credit Regulation: 9.3.38 Oklahoma

Oklahoma repealed its payday lending statute effective August 1, 2020.472 Until then, payday lending was legal in Oklahoma under the Deferred Deposit Lending Act.473 According to the Act, a lender was restricted from making a loan for more than $500,474 and could not make a loan if the borrower had more than one outsta

Consumer Credit Regulation: 9.3.44 South Dakota

While payday lending is legal in South Dakota, voters overwhelmingly adopted a 36% rate cap in November 2016.510 The cap includes all ancillary products or services and all charges or fees incident to the extension of credit.511 It became effective November 16, 2016.512 Violations of the amended law are a class 1 misdemeanor.

Consumer Credit Regulation: 9.3.46 Texas

Payday lenders do business in Texas under that state’s Credit Services Organization Act.523 That statute allows licensed credit services organizations to charge fees for arranging extensions of credit for consumers. The payday lender arranges for a short-term loan from an ostensibly independent lender. The lender charges just the legal rate of interest, but the payday lender that arranges the loan charges a large, flat fee that brings the true APR to as much as 450%.

Consumer Credit Regulation: 9.3.49 Virginia

Payday (now called “short-term”) lending is authorized by statute in Virginia.544 The 2010 amendments imposed a number of restrictions on lenders. In 2020, the statute was amended again, with an effective date of January 1, 2021.

Consumer Credit Regulation: 9.4.1 Talent-Nelson Military Lending Act

The Military Lending Act (MLA) effectively bans payday lending extended to servicemembers and their dependents even in those states that permit high-rate payday lending. The MLA does this in four ways: it limits annual percentage rates (including most fees) to 36%; it limits rollovers of payday loans; it places limits on various ways payday lenders access the consumer’s bank account or wages; and it ensures that state laws limiting payday lending apply to military personnel stationed only temporarily in the state.

Consumer Credit Regulation: 9.4.2.1 Overview

The Consumer Financial Protection Bureau (CFPB) has jurisdiction over state and federal, bank and non-bank, payday lenders. It accepts complaints from consumers regarding payday loans605 and has brought enforcement actions606 against payday lenders.