That sounds as though the payday stores sought out the banks
The majority opinion says that BankWest uses “Tele-Track,” a third-party loan-processing agent to approve or disapprove loans, and that Advance America also uses Tele-Track in states where Advance America makes loans in its own name. Ante, at 1295 & n. 5. We are not told the significance of that fact. It erica also use the same brand of copy machine or the same long-distance carrier, but so what?
The majority may be hoping that some readers will infer from the fact that Tele-Track is commonly hired to apply a lender’s loan criteria that BankWest and Advance America use the same loan criteria. The record provides no support at all for that inference; it is silent about what underwriting criteria Advance America uses when Youngston financiOH payday loans making loans itself instead of acting as an agent for a lender. The record, however, does show something on that subject about three other cash advance stores that serve as Georgia agents for out-of-state banks. It shows that when those stores are located in states that allow them to make this type of loan directly to consumers, they use different underwriting criteria than the out-of-state banks use in Georgia.
” Ante, at 1294. There is nothing in the record to show who sought out whom. It would be just as accurate to say that the banks entered into arrangements with those stores to serve as the banks’ agents in Georgia. In fact, an affidavit in the record does put it that way: “BankWest contracted with Advance America to act as BankWest’s authorized fiscal agent in Georgia. . . .”
Indeed, a heavy federal presence in the field and extensive federal regulation of national interest rates extends back at least as far as the 1884 amendments to the National Bank Act of 1864
Maybe a little more explanation will help. BankWest was responsible for loan losses up to the first 8.5 percent of the finance charges. Because the loan loss was 12.5 percent of the finance charges, and BankWest was responsible for the loan loss on the first 8.5 percent of the finance charges, it shouldered 68 percent of the loan loss for that fourteen-month period. (8.5% ? 12.5% = 68%)
In what is more a questionable implication than a misrepresentation, the majority opinion says that: “Accordingly, the local payday stores in this case have entered into arrangements with out-of-state banks to serve as their agents in Georgia
There is, to be sure, an “assumption that the historic police powers of the states are not superceded by federal law unless preemption is the clear and manifest purpose of Congress,”Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th Cir. 2004), but just as surely, that “`assumption’ of non-preemption is not triggered when the State regulates in an area where there has been a history of significant federal presence,” United States v. Locke, 529 U.S. 89, 108, 120 S. Ct. 1135, 1147, 146 L. Ed. 2d 69 (2000). Usury laws are an exercise of the historic police powers of the states, but there has been a history of significant federal presence in banking, particularly interest rates on a national scale. See Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 32-34, 116 S. Ct. 1103, 1108-09, 134 L. Ed. 2d 237 (1996); see also Franklin Nat’l Bank of Franklin Square v. New York, 347 U.S. 373, 375-76, 74 S. Ct. 550, 552-53, 98 L. Ed. 767 (1954). Section 27(a) of the FDIA is part of that federal scheme, and, in fact, mirrors § 85 of the NBA. Compare 12 U.S.C. § 1831d(a), with 12 U.S.C. § 85. Because the Georgia Act attempts to interfere with the federal right of out-of-state banks to apply their charter-state interest rates nationally, it is not entitled to the benefit of a presumption against preemption.