Friday, February 18, 2022

FYI: 3rd Cir Holds Penn Regulator's Actions Against Out-of-State Lender Did Not Violate Commerce Clause

The U.S. Court of Appeals for the Third Circuit recently reversed a trial court's ruling that the Pennsylvania Department of Banking and Securities violated the Commerce Clause by issuing and attempting to enforce a subpoena to an out-of-state vehicle title lender regarding the out-of-state lender's interactions with Pennsylvania residents.

 

In so ruling, the Third Circuit held that:

 

1-  Applying the Pennsylvania statutes at hand to the lender did not violate the extraterritoriality principle,

 

2-  The Pennsylvania Department of Banking and Securities had a strong interest in prohibiting usury,

 

3-  Applying Pennsylvania's usury laws to the lender's loans furthered that interest, and

 

4-  Any resulting burden on interstate commerce was, at most, incidental.

 

A copy of the opinion is available at:  Link to Opinion

 

A vehicle title lender provided vehicle loans at interest rates as high as 180%. Borrowers would receive a check drawn on a bank outside of Pennsylvania and would grant the lender a security interest in the vehicle. The lender would record its lien with the appropriate state authority.

 

Borrowers could make payments from their home states. The lender did not have any offices, employees, agents, or brick-and-mortar stores in Pennsylvania and was not licensed as a lender in Pennsylvania. The lender claimed that it never solicited Pennsylvania business and did not run television ads within Pennsylvania.

 

Pursuant to the Consumer Discount Company Act ("CFCA") and the Loan Interest and Protection Law ("LIPL"), Pennsylvania's Department of Banking and Securities issued a subpoena requesting documents regarding the lender's interactions with Pennsylvania residents. The lender then stopped making loans to Pennsylvania residents and asserted that it lost revenue.

 

The Department filed a petition to enforce the subpoena in the Pennsylvania Commonwealth Court ("Petition Action") and the parties filed cross-motions for summary judgment based on Younger abstention and the dormant Commerce Clause. The trial court granted the lender's motion and denied the Department's.

 

The trial court held that Younger abstention did not apply, but found that, because the lender's loans are completely made and executed outside Pennsylvania and inside the lender's brick- and-mortar locations in Delaware, Ohio, or Virginia, the Department's subpoena's effect is to apply Pennsylvania's usury laws extraterritorially in violation of the Commerce Clause. The Department timely appealed.

 

as you may recall, under the Younger abstention doctrine, federal courts must refrain from interfering with three types of state proceedings. One of these is civil enforcement proceedings. Sprint Commc'ns, Inc. v. Jacobs 571 U.S. 69, 78 (2013).

 

A "civil enforcement proceeding" warrants Younger abstention when the proceeding is "akin to a criminal prosecution" in "important respects." Id. at 79 (citation omitted). To determine if a civil enforcement proceeding is quasi-criminal in nature, federal courts consider whether (1) the action "was commenced by the state in its sovereign capacity," (2) the action was "initiated to sanction the federal plaintiff for some wrongful act," (3) there are "other similarities to criminal actions, such as a preliminary investigation that culminated with the filing of formal charges," and (4) "the State could have alternatively sought to enforce a parallel criminal statute." ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014)

 

The Third Circuit here held that the Petition Action was not a civil enforcement proceeding because it was filed to enforce a subpoena, not to punish the lender. See Pa. Dep't of Banking & Sec. v. TitleMax of Del., Inc., 1:17-cv-02112-JPW (M.D. Pa. Nov. 16, 2017), ECF No. 1-2.

 

Another type of case in which Younger abstention may apply is one that furthers the state court's ability to perform its judicial function. Sprint, 571 U.S. at 78.

 

However, the Third Circuit reasoned that the Petition Action presents only a possibility of contempt, akin to any other case where courts issue orders and a party's noncompliance can lead to contempt. Thus, there was no judicial contempt process with which this federal case could interfere. See Malhan v. Sec'y U.S. Dep't of State, 938 F.3d 453, 464-65 (3d Cir. 2019).

 

Therefore, the Third Circuit held that Younger Abstention did not apply to this case.

 

as you also may recall, when evaluating whether a state statute violates the Commerce Clause, federal courts examine the statute's effect on interstate commerce. Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). One way a challenged statute can "directly regulate" interstate commerce is if the statute has "extraterritorial effects that adversely affect economic production (and hence interstate commerce) in other states." Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 462 F.3d 249, 261-62 (3d Cir. 2006).

 

The Third Circuit here followed a two-step approach in analyzing the lender's Commerce Clause claim. Initially, the Court addressed the territorial scope of the transaction that the Department attempted to regulate and whether such transactions occurred "wholly outside" the state. A.S. Goldmen & Co., Inc. v. N.J. Bureau of Sec., 163 F.3d 780, 786 (3d Cir. 1999). If the transactions did not occur wholly outside of Pennsylvania, then it would be upheld unless the burden on interstate commerce was "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

 

The Third Circuit observed that, unlike the sale of a good, a loan from the lender has a longer lifespan: it involves later payments and permits a physical taking (repossession) from inside another state. Because the lender both received payments from within Pennsylvania and maintained a security interest in vehicles located in Pennsylvania that it could act upon, the Court held that its conduct was  not "wholly outside" of Pennsylvania.

 

Thus, the Third Circuit also concluded that applying the Pennsylvania statutes to the lender did not violate the extraterritoriality principle.

 

On the interstate commerce burdens side, the Third Circuit determined that application of Pennsylvania's usury laws to transactions with Pennsylvanians put the lender in no different position than an in-state lender. See Instructional Sys., Inc. v. Comput. Curriculum Corp., 35 F.3d 813, 826-27 (3d Cir. 1994). Although it may be true, the Court noted, that the lender could be subject to different interest rate caps depending on the borrower's state of residence, the Court concluded that this result is not a "clearly excessive" burden on interstate commerce.

 

Additionally, when considering the local benefits, the Third Circuit held that they weighed in favor of applying Pennsylvania laws to the lender because the laws protect Pennsylvania consumers from usurious lending rates. The lender's interest rates may be as high as 180%, but the Court found that if the CDCA and LIPL applied, the lender's  rates for Pennsylvania customers would be capped at 6%. Cash Am. Net of Nev., LLC v. Pa. Dep't of Banking, 8 A.3d 282, 285-86 (Pa. 2010). Thus, the Court concluded that any burden did not clearly exceed the local benefits. Pike, 397 U.S. at 142.

 

Therefore, the Third Circuit held that the Department had a strong interest in prohibiting usury, applying Pennsylvania's usury laws to the lender's loans furthered that interest, and any burden on interstate commerce from doing so was, at most, incidental. The Department was thus allowed to investigate and apply its usury laws to the lender without violating the Commerce Clause.

 

Accordingly, the Third Circuit reversed the judgment in favor of the lender and directed the trial court to enter judgment in favor of the Department.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.


Our updates and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

and

 

The Consumer Financial Services Blog

 

and

 

Webinars

  

 

 

 

Tuesday, February 15, 2022

FYI: Cal App Ct (2d Dist) Holds Creditor's Application for Sale Must Include Unrecorded Liens on Property

The Court of Appeals of the State of California, Second Appellate District, recently affirmed a trial court's denial of a judgment creditor's application for sale of the debtor's dwelling to satisfy the creditor's money judgment, finding the application was deficient.

 

In so ruling, the Second District held that a judgment creditor's application for sale of the judgment debtor's dwelling to satisfy the money judgment must include a description of the liens on the property for unpaid real estate taxes, even if those liens are not be recorded and come into being by operation of law.

 

A copy of the opinion is available at:  Link to Opinion

 

After a creditor ("Creditor") was awarded a money judgment in an underlying lawsuit brought against one joint tenant of a 4-dwelling unit ("Debtor"), Creditor recorded an abstract of judgment with the county recorder's office and filed a request for the trial court to issue a writ of execution on the judgment. The writ was issued and Creditor was served with a notice that a levy was made on the property pursuant to the writ.

 

Creditor subsequently filed an application for the court to order the sale of Debtor's one-fourth interest in the property to satisfy the outstanding judgment. In the application Creditor stated "[o]ther than [Creditor's] judgment lien and execution lien…, there [were] no actual or purported liens or encumbrances on [Debtor's] interest in the Property." The trial court denied the application finding that it did not contain the lien information required by California Code Civ. Proc., § 704.760 in that it did not list the property tax liens on the property. Creditor appealed.

 

As you may recall, California's Enforcement of Judgment Law "authorizes a creditor holding a 'money judgment' to 'enforce' that judgment against 'all property of the judgment debtor…'" O'Brien v. AMBS Diagnostics, LLC., (2016) 246 Cal. App. 4th 942, 947, quoting §§ 695.010, subd. (a), 669.710.

 

If the creditor is enforcing the money judgment against the real property that a debtor uses as his "dwelling" the creditor must follow certain steps. In addition to other procedures, the Creditor must also apply for a court order authorizing the sheriff or other levying officer to sell the dwelling. §§ 704.750, subd. (a), 704.760; Amin v. Khazindar (2003) 112 Cal. App. 4th 582, 589 (Amin).)

 

The application must include certain information, including "the amount of any liens or encumbrances on the dwelling, the name of each person having a lien or encumbrance on the dwelling, and the address of such person used by the county recorder for the return of the instrument creating such person's lien or encumbrance after recording." California Code Civ. Proc., § 704.760, subd. (c).

 

The question before the Second District here was whether an unrecorded property tax lien falls within the definition of "any lien[] or encumbrance[] on [a] dwelling" that must be set forth in a judgment creditor's application to sell the dwelling under section 704.760.

 

The Court held the answer was yes, for two reasons.

 

First, the Second District ruled that the plain text of section 704.760 dictated this result as it requires the judgment creditor to set forth "the amount of any liens or encumbrances on the dwelling." (California Code Civ. Proc., § 704.760, subd (c).) The Court found that since a property tax lien is a lien and encumbrance and there was no requirement of recording the lien in the county recorder's office, an unrecorded property tax lien is a "lien or encumbrance on a dwelling" that must be disclosed in the creditor's application.

 

The Second District also held that reading section 704.760 to include the disclosure of unrecorded property liens was also consistent with the purpose of the statute. The Court noted that a key purpose of the statute is to ensure "senior liens and encumbrances would be paid" and that purchasers at the sale "will own the property free and clear of all liens and encumbrances." (Rourke, supra, 17 Cal.App.4th at p. 885; Little, supra, 234 Cal.App.3d at p. 360.).

 

Creditor argued that the statute applies only to recorded liens but the Second District disagreed. The Court reiterated that the subdivision requires a creditor to disclose "any liens on encumbrances on the dwelling." The Court added that the clauses referencing the name and address of the recording party only require that the name and address information be disclosed as to those liens that happen to be recorded. In addition, the Court ruled that because a tax lien is imposed by a public entity with an easily ascertainable name and address, the information would be wholly unnecessary.

 

Creditor also argued that his application did disclose the tax lien as it was mentioned in the preliminary title report which accompanied the application for an order to sell the property. However, the Second District found this insufficient as section 704.760 requires the judgment creditor to state, "under oath," the "liens or encumbrances on the dwelling." (California Code Civ. Proc., § 704.760, subd.(c)). Thus, the Court held merely including the liens or encumbrances somewhere in the application for the court to find on its own was insufficient.

 

Accordingly, the Second District affirmed the trial court's order denying the application for sale on the property.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.


Our updates and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

and

 

The Consumer Financial Services Blog

 

and

 

Webinars