Because § 27(a) expressly preempts the Georgia Act with regard to its regulation of interest rates charged by out-of-state banks, I would hold that the out-of-state banks and their in-state agents have met their burden of demonstrating the first prong of the preliminary injunction determination, which is a substantial likelihood of success on the merits. As for the second prong, the district court found, and the State of Georgia does not dispute, that the banks and their agents have sufficiently demonstrated irreparable harm.
In analyzing the third prong, the district court found that the threatened injury to the out-of-state banks and their in-state agents did not outweigh the damage the injunction would cause to the citizens of the State of Georgia, and as a result that they https://paydayloansohio.net/cities/marysville/ had not met their burden on this prong. In the three sentences devoted to this topic, the district court summarily found that ” [a]n injunction against enforcement of the Act would permit payday lenders to continue collecting exorbitant amounts of interest from thousands of Georgia citizens who can ill afford it.” BankWest, Inc. v. Baker, 324 F. Supp. 2d 1333, 1357 (N.D. Ga. 2004). That finding is defensible only if one assumes, as the district court had concluded, that the Georgia Act is not expressly preempted by § 27(a). But it is preempted, and that changes things. In the words of the Fifth Circuit, ” [s]ince Congress expressly preempted this area of regulation, the states are not injured by the injunction” and “there is no injury to the states to weigh.” See Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 784 (5th Cir. 1990), holding recognized as limited on other grounds by Johnson v. Baylor Univ., 214 F.3d 630 (5th Cir. 2000).
The same analysis holds true with regard to the fourth prong of the preliminary injunction analysis. Issuing an injunction to ensure the proper operation of federal law is not adverse to the public interest. See id. The public interest is best served by applying federal law as directed by the express language of § 27(a).
Because the out-of-state banks and their in-state agents have met their burden on each of the four prongs of the preliminary injunction analysis, the district court abused its discretion in failing to grant them a preliminary injunction. Accordingly, I dissent.
When we use the term “out-of-state bank,” we are referring to a “State-chartered insured depository institution” under the FDIA that is chartered in a state other than Georgia
Tele-Track is an automated-consumer-information database that Advance America also uses in other states where Advance America makes loans in its own name
The costs include all rental and occupancy costs, up-front and leasehold improvements, equipment costs, processing costs, printing costs, maintenance costs, staffing costs, taxes, signage costs, and advertising. The agreement between BankWest and Advance America does not contain any provisions allowing BankWest to train, supervise, or monitor Advance America’s employees who deal with the borrowers and collect the loans. Further, the agreement provides that Advance America has the duty and responsibility of complying with all federal and state laws when collecting loans. It is undisputed that BankWest and Advance America are wholly separate entities
The second and final page of the loan contract contains an arbitration agreement, which must be signed by the borrower, BankWest, and Advance America
BankWest “owns” all the loans initially, but retains the right to sell a loan to any third party; Advance America, as the payday store has a right of first refusal on any loan that BankWest chooses to sell