First, and most important, the Act provides a complete exemption to out-of-state banks for liability under the Act

First, and most important, the Act provides a complete exemption to out-of-state banks for liability under the Act

See Ga.Code. Ann. §§ 16-17-2(a) (3), (b). Therefore, out-of-state banks acting for themselves are free to charge Georgia borrowers their home state interest rates as authorized by § 27(a) of the FDIA without being subject to any liability under the Act.

In addition, the Act leaves open other alternatives for out-of-state banks to export their home-state interest rates to Georgia borrowers. Given modern technology and communications in today’s economic world, out-of-state banks have a plethora of distribution channels to use in exporting their home state interest rates to Georgia borrowers.

Second, the Act does not prohibit out-of-state banks from using independent agents, including payday stores, or other partnerships to make payday loans at their home-state interest rates in Georgia

In sum, nothing in the language of § 27(a) gives out-of-state banks the sole and exclusive right to use independent, in-state payday stores as agents or to define the nature of their relationship with those payday stores. Consequently, we conclude that there is no conflict preemption.

As stated above, express preemption occurs when “Congress has manifested its intent to preempt state law explicitly in the language of the statute.” Cliff, 363 F.3d at 1122. Section 27(a) of the FDIA states that “notwithstanding any State constitution or statute which is hereby preempted for the purposes of this section,” an out-of-state bank may charge on any loan the rate of interest allowed by the laws of its charter state. 12 U.S.C. § 1831d(a). Therefore, this is obviously a case in which the federal statute preempts some forms of state law.

Rather, the Act restricts out-of-state banks from only one limited type of agency: using a separate, in-state business entity in Georgia that holds “a predominant economic interest” in the loan revenues

Because this is an express preemption case, § 27(a) preempts “something” and precludes state laws on that “something.” Accordingly, the question is whether the language of § 27(a) preempts the Georgia Act, not whether Congress intended to preempt state legislation when enacting § 27(a). In turn, this case presents two sub-questions of statutory interpretation that must be answered. The first question is what is the scope of the express preemption accomplished by § 27(a)’s plain language which provides that a “State bank . may . charge on any loan . interest . at the rate allowed by the laws of the State . where the bank is located.” 12 U.S.C. § 1831d(a). The second question is whether the Georgia Act falls within the scope of § 27(a).

When Congress expressly codifies its preemptive intent in statutory form, our analysis “begins with the language of the statute.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 542, 121 S. Ct. 2404, 2415, 150 L. Ed. 2d 532 (2001). Our task of statutory interpretation must also be guided by Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116 S. Ct. 2240, 2250, 135 L. Ed. 2d 700 (1996), where the United States Supreme Court addressed a federal statute that “expressly pre-empts state law.” The Supreme Court noted that in such express-preemption situations “our interpretation of [the preemptive] language does not occur in a contextual vacuum. Rather, that interpretation is informed by two presumptions about the nature of pre-emption.” Id. at 485, 116 S. Ct. at 2250.

“First, because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law . particularly in those [areas] in which Congress has legislated in a field which the States have traditionally occupied.” Id. (internal quotation marks, punctuation cash advance til payday Macedonia, OH, and citations omitted). In such situations, it is important to give the statute a narrow construction in order to be consistent with both federalism concerns and the historic primacy of state regulation. See id.; Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518, 112 S. Ct. 2608, 2618, 120 L. Ed. 2d 407 (1992). As noted earlier, states and state regulators have traditionally regulated state banks, and remain the primary regulatory authority.

admin

Leave a Comment

Your email address will not be published.