Pleadings and Discovery

This is a class action complaint against a debt settlement organization that used the attorney model. It alleges common law fraud, violation of the Illinois Consumer Fraud Act, unjust enrichment, violation of the Illinois Rules of Professional Conduct (for attorneys), and the Illinois Debt Settlement Consumer Protection Act. The facts of the complaint provide an extensive description of how debt settlement operators attempt to evade laws regulating debt relief services by attempting to use attorneys as a front for their operations.

1. Elevate is on online lender that operates through several websites, including www.risecredit.com, www.elastic.com, and www.elevate.com, to provide predatory, high-interest, short-term loans to consumers that it describes as individuals “with little to no savings, urgent credit needs and limited options.”

This is a case about federal overreach. States have long used interest-rate caps to protect consumers, business owners, and scrupulous creditors from the harms of predatory lending. The Federal Deposit Insurance Act (“FDIA”) exempts federally insured, state-chartered banks and insured branches of foreign banks (“FDIC Banks”) from these caps.

States have long used interest-rate caps to prevent predatory lending. In light of the comprehensive federal regulatory regime to which national banks are subject, Congress exempted them from compliance with state rate caps in the National Bank Act (“NBA”). 12 U.S.C. § 85 (allowing national banks to “take, receive, reserve, and charge” interest in excess of state law); see also 12 U.S.C. § 1463(g)(1) (same for federal savings associations).

As demonstrated in the accompanying memorandum of points and authorities, and the Administrative Record (“AR”), the FDIC’s rule on the Federal Interest Rate Authority, 85 Fed. Reg. 44,146 (July 22, 2020) (“Final Rule”) represents a reasonable interpretation of 12 U.S.C. § 1831d, and should be upheld under Chevron’s familiar two-step framework. The Final Rule is neither arbitrary or capricious, nor contrary to law, is consistent with the FDIC’s authority, and in compliance with applicable procedural requirements.

Does the preemption of state usury laws enjoyed by national banks under the National Bank Act extend to non-bank debt buyers where, as here, the national bank retains no interest in or control over the subject accounts, and the national bank and the debt buyer are operationally and legally unrelated entities?

This is an action under the Administrative Procedure Act for declaratory relief from Gainful Employment (“GE”) regulations of the U.S. Department of Education, 34 C.F.R. Part 668 Subpart Q, as applied to member schools of the American Association of Cosmetology Schools. The GE regulation assesses the outcomes of educational programs based on the ratio of graduates’ educational debt to earnings. Although the Department acknowledges that some graduates of cosmetology programs underreport their incomes, the Department has made no provision for such underreporting in its regulations.

Complaint and Demand for Declaratory and Injunctive Relief

This is an amended counterclaims to a Florida action to foreclose on a reverse mortgage for failure to pay property taxes and insurance.  Counterclaims include UDAP and FDCPA claims against the servicer.  Lynn Drysdale of Jacksonville Legal Aid drafted the pleadings.