What we know about the online payday lending lawsuit Mick Mulvaney ordered the CFPB to drop

In April 2017, the Consumer Financial Protection Bureau sued four companies, Golden Valley Lending, Silver Cloud Financial, Mountain Summit Financial, and Majestic Lake Financial, for using sham tribal-sovereignty claims to collect debts on loans that violated an array of state laws as well as the federal Truth in Lending Act.

On January 18, 2018, the bureau moved to dismiss its lawsuit. After an initial statement attributing the decision to “professional career staff,” Mick Mulvaney backtracked, acknowledging his own involvement. The case took years to build, and the idea of dropping it was opposed by the “entire career enforcement staff,” National Public Radio has reported.

Here is what we know about the companies, their operations, and the allegations against them.

Golden Valley payment schedule on an $800 loan

The four companies used their websites and online ads to make tens of millions of dollars of loans at 440% – 950% annual interest. Between August and December 2013, Silver Cloud and Golden Valley originated roughly $27 million in loans and collected $44 million from consumers. A typical $800 loan called for payments totaling approximately $3,320 over ten months — the equivalent of 875.5% annual interest. Interest rates on all the loans examined by the CFPB ranged from 440% to 950%.

The Consumer Bureau sued them for engaging in unfair, deceptive, and abusive business practices by attempting to collect payments on loans that were void in whole or part under the usury and/or licensing laws of 17 states. Their loans were illegal, according to the complaint, in Arizona, Arkansas, Colorado, Connecticut, Illinois, Indiana, Kentucky, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Carolina, South Dakota, and Ohio. Golden Valley and the other companies carried on with their lending and collection activities even after the Attorneys General of several states sent cease-and-desist letters.

The defendants explained their fees in confusing ways, according to the complaint, and violated the federal Truth in Lending Act by failing to disclose annual interest-rate information on their websites or in their advertising. “Each of Defendants’ websites advertises the cost of installment loans and includes a rate of finance charge but does not disclose the annual percentage rates (APR). The ‘FAQ’ section of each of the websites answers the question ‘How much does the consumer loan cost?’ by stating: ‘Our service fee is $30 per $100 loaned. This fee is charged every two weeks on your due dates, based upon the principal amount outstanding.’”

The companies were charged with violating a Truth in Lending Act requirement that all advertising for closed-end credit state finance charges in annual percentage rate terms. In addition, according to the complaint, customer service representatives consistently failed to include that information in answers to questions raised over the phone by applicants or customers.

The four companies claimed to be protected by tribal sovereign immunity. Based on ties to a small Native American tribe in Northern California, they asserted that their loans would be “governed by applicable tribal law” regardless of where the consumer “may be situated or access this site.” The companies made this claim despite a United States Supreme Court ruling in 2014 that tribes “‘going beyond reservation boundaries’ are subject to any applicable state law.’” Numerous courts have held that when a loan is made online, the transaction is considered to have taken place wherever the consumer is located at the time.

Despite recent legal victories, states can have a hard time, without federal help, going after online lenders that break state laws. Through the use of shell companies, “lead generators,” and various legal ploys, online lenders — including the companies named in this lawsuit — have been able to keep state authorities at bay for years. Whether tribal ties really give payday loan companies a right to assert sovereign immunity remains a murky legal issue: the courts have allowed some state lawsuits to proceed while blocking others. But tribal businesses cannot invoke sovereign immunity against the United States. That’s one reason why the federal government’s ability to act is so important.

Revenues from at least one of the four lenders, and from an affiliated call center, went to RM Partners, a corporation founded by the son of Richard Moseley, Sr., who was recently convicted of federal racketeering charges. Moseley Sr., a Kansas City businessman, was found guilty in November 2017 of wire fraud, aggravated identity theft, and violations of the Truth in Lending Act as well as racketeering in connection with a payday lending scheme that charged illegally high interest rates and issued loans to people who had not authorized them. Over an eight-year period, according to the Justice Department, Moseley’s operation took advantage of more than 600,000 customers and generated an estimated $161 million in revenues. Moseley and his son spent some of that money on “luxuries including a vacation home in Colorado and Playa Del Carmen, Mexico, high-end automobiles, and country club membership dues.”

The business practices of Moseley’s operation and the four defendant companies closely resembled those of another Kansas payday lender, the race-car driver Scott Tucker, also recently convicted of federal racketeering charges. Like Golden Valley et al, the lending companies run by Tucker and his lawyer-partner Timothy Muir did business through a call center located in Overland Park, Kansas, and relied on a claim of tribal sovereign immunity, based in their case on ties to an Oklahoma tribe. The Tucker-Muir companies, featured in the Netflix documentary series “Dirty Money,” used similar contractual language to obscure their practice of defaulting customers into a many-months-long series of payments that got applied entirely to loan fees, making no dent in the balance.

Tucker and Muir were convicted in January 2018 of racketeering, wire fraud, money laundering, and violations of the Truth-In-Lending Act. Payments collected by Tucker’s businesses went into accounts at U.S. Bank, whose parent company, U.S. Bancorp, has agreed to pay $613 million in civil and criminal penalties for what the Justice Department described as a “highly inadequate” anti-money-laundering system that failed to flag these and other suspicious transactions. The Tucker-and-Muir story is another illustration of the need for action at the federal level if online payday lenders are to be stopped from evading state laws and continuing to exploit consumers.

— Jim Lardner

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