Dillon v. BMO Harris Bank, N.A.
Dillon v. BMO Harris Bank, N.A.
Opinion of the Court
MEMORANDUM OPINION AND ORDER
This matter is before the Court on motions to dismiss for failure to join an indispensable party and failure to state a claim filed by defendants BMO Harris Bank, Bay Cities Bank, and Four Oaks Bank & Trust.
The Court will deny the motions to dismiss for failure to join an indispensable party, the motion to sever, and the motion to transfer. The Court will grant in part and deny in part the motions to dismiss for failure to state a claim. Specifically, the Court will grant the motions to dismiss Mr. Dillon’s usury and money had and received claims as to all defendants and will grant the motions to dismiss Mr. Dillon’s Consumer Finance Act (“CFA”) claim as to defendants BMO Harris, Generations, and Four Oaks. The motion to dismiss the CFA claim will be denied as to defendant Bay Cities. The Court will deny the motions to dismiss as to Mr. Dillon’s.
Racketeer Influenced and Corrupt Organizations Act (“RICO”), Unfair and De
BACKGROUND
According to the complaint, plaintiff James Dillon, a North Carolina resident, obtained five loans over the internet from lenders based offshore or on Indian reservations.
Mr. Dillon has not, however, sued these internet lenders. Instead, he has brought suit against the banks which served as Originating Depository Financial Institutions (“ODFIs”) in connection with transactions related to the loans. To electronically deposit the loan proceeds and then to debit Mr. Dillon’s bank account for repayments, the lenders needed access to the Automated Clearing House (“ACH”) Network.
Mr. Dillon alleges that the defendant ODFIs knew or should have known that the lenders were engaged in making payday loans in states where the loans were unlawful and that they violated RICO by knowingly facilitating the collection of usurious loans through the ACH Network. Mr. Dillon also asserts various claims pursuant to North Carolina law.
ANALYSIS
I. Motion to Dismiss for Failure to Join an Indispensable Party
The defendants contend that Mr. Dillon’s case must be dismissed because he failed to join his lenders as party-defendants. It is the defendants’ burden to demonstrate that the lenders are indispensable parties under Rule 19.
Under Rule 19(a), a person is a “required party” if one of three factual situations is present.
(1) “in [the] person’s absence, the court cannot accord complete relief among existing parties”; or
(2) “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may ... as a practical matter impair or impede the person’s ability to protect the interest”; or
(3) “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may ... leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”17
The defendants contend this case falls into all three categories.
Defendants first contend that the Court cannot accord complete relief among the existing parties because two of Mr. Dillon’s requests for injunctive relief directly affect the lenders. Mr. Dillon seeks a “release from any further obligation to make payments” to the lenders
The defendants next contend that the lenders are required parties because they were parties to Mr. Dillon’s loan agreements, and any decision rendered in the lenders’ absence will impair the lenders’ interests in those agreements. It is generally true that “in an action to set aside a lease or a contract, all parties who may be affected by the determination of the action are indispensable.”
Next, the defendants contend that the lenders’ interests will be impaired because Mr. Dillon’s “lawsuit challenges ... his lenders’ entire business model.”
It is possible that Mr. Dillon’s claim against Bay Cities under the CFA
Defendant Four Oaks also contends that lender White Hills Cash is a required party because Mr. Dillon’s case impinges on White Hills Cash’s sovereign rights as an arm of a federally recognized Indian tri be.
The Fourth Circuit held that the Tribe was a required party under Rule 19(a) for three reasons. First, it was impossible to accord complete relief without the Tribe because judgment against Harrah’s alone would not stop the Tribe from enforcing its tribal preference policy, which was part of the relief the plaintiff requested.
As noted above, the Court can give complete relief among the existing parties because Mr. Dillon abandoned his requests for injunctive relief that directly implicated Four Oaks’ relationship with White Hills Cash. Neither Four Oaks nor any other defendant has explained whether or how this litigation might interfere with their contractual relationships with the lenders, beyond their objection to the claims for relief which Mr. Dillon has abandoned.
The defendants have not met their burden to establish that the lenders are required parties under Rule 19(a) based on the facts alleged in the complaint, as modified by Mr. Dillon’s concessions. Therefore, the Court need not address whether the lenders can be joined or, if they cannot, whether the action should proceed without them. Should the circumstances appear otherwise as the factual record is developed, the Court can reconsider the question.
II. BMO Harris’s Motion to Sever or Dismiss
BMO Harris contends that the claims against it should be severed from those against the other defendants because file requirements of Federal Rule of Civil Procedure 20(a)(2) do not allow permissive joinder. Rule 20(a)(2) provides that:
Persons ... may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.50
“The requirements for permissive joinder are liberally construed in the interest of convenience and judicial economy in a manner that will secure the just, speedy, and inexpensive determination of the action.”
Mr. Dillon has not made claims against the four defendants which allege a joint, several, or alternative right to relief.
Mr. Dillon’s claims against the banks raise common questions of law.
Mr. Dillon alleges that he engaged in a series of transactions with the various lenders and that his rights to relief against the defendants arise out of that series of transactions. On the one hand, each defendant’s role is alleged to be the same as the other defendants and to have arisen in exactly the same way. And each defendant is alleged to have used the same ACH system in the same way as the other defendants, all in a relatively small period of time, harming the same person. On the other hand, the complaint alleges that each transaction was completely independent. On balance, considering Rule 20(a)’s purpose and liberal construction, the Court concludes this constitutes a “series of transactions.”
The Court has also considered other relevant factors to make its discretionary decision as to whether Mr. Dillon should be allowed to proceed against all defendants in one lawsuit.
III. BMO Harris’s Motion to Transfer
BMO Harris moves to transfer the case against it to the Eastern District of New York.
There are eleven factors relevant to this determination:
*617 (1) the plaintiffs initial choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action; and (11) avoidance of unnecessary problems with conflicts of laws.60
These factors either favor keeping the case in North Carolina or are neutral. Mr. Dillon selected North Carolina as the forum, North Carolina has an interest in having challenges to its consumer protection laws settled here, and this Court is familiar with North Carolina law. Judicial economy also favors keeping the case in North Carolina. If Mr. Dillon’s claims against BMO Harris were transferred to New York, this Court would still be required to deal with the same issues as to the other defendants. Thus two courts would be required to decide the same questions.
Nor does the first-filed rule compel transfer. Courts consider three factors in determining whether the first-filed rule is applicable: “(1) the chronology of the filings, (2) the similarity of the parties involved, and (3) the similarity of the issues being raised.”
Because BMO Harris has failed to meet its burden to show that transfer is warranted under § 1404, its motion to transfer is denied.
IV. Motion to Dismiss for Failure to State a Claim
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court must consider all well-pled allegations in a complaint as true,
a. RICO
Mr. Dillon has alleged RICO claims based on the collection of unlawful debt. “For RICO claims based on the collection of unlawful debt, the prevailing view is that the plaintiff need not show a pattern of such activity — one act of [unlawful debt] collection is sufficient.”
(1) there was a RICO enterprise, (2) its activities affected interstate commerce, (3) the individual defendants were employed by or associated with the enterprise, (4) the [defendants] used, in the operation of the enterprise, income derived from the collection of unlawful debt, ... (5) the individual defendants participated in the conduct of the affairs of the enterprise through collection of unlawful debt ... within the meaning of RICO, ... (6) the debt was unenforceable in whole or in part because of state or federal laws relating to usury, (7) the debt was incurred in connection with the business of lending money at a usurious rate, and (8) the usurious rate was at least twice the enforceable rate.68
It appears there is no mental state requirement “beyond that found in the predicate crimes.”
b. Aiding and Abetting Usury under North Carolina Law
Mr. Dillon contends that the defendants violated North Carolina’s usury statute by aiding and abetting the lenders’ usurious loans. The usury statute provides that “the parties to a loan [with a principal amount of $25,000 or less] ... may contract in writing for the payment of interest not in excess of’ six percent above the latest noncompetitive rate for U.S. Treasury bills with a six-month maturity, or sixteen percent, whichever is greater.
[1] a loan or forbearance of the collection of money, [2] an understanding that the money owed will be paid, [3] payment or an agreement to pay interest at a rate greater than allowed by law, and [4] the lender’s corrupt intent to receive more in interest than the legal rate permits for use of the money loaned.71
Corrupt intent is shown if the interest rate on the face of the loan is intentionally greater than the law allows.
It is true that when the language of a statute is ambiguous, courts may look to legislative purpose and intent to construe it.
The usury statute applies by its terms to “the parties to a loan.”
c. The North Carolina Consumer Finance Act
Mr. Dillon contends that the defendants violated the CFA directly and as aiders and abettors. Three of the defendants contend they are exempt from the provisions of this statute, and all of the defendants contend the complaint fails to state a claim against them.
The CFA exempts many banks and credit unions from its provisions. Specifically, the statute provides:
Nothing in this Article shall be construed to apply to any person, firm or corporation doing business under the authority of any law of this State or of the United States relating to banks, trust companies, savings and loan associations, cooperative credit unions, ... other than persons, firms and corporations engaged in the business of accepting fees for endorsing or otherwise securing loans or contracts for repayment of loans.78
Under a plain reading of this provision, three of the four defendants are exempt from the CFA under the facts alleged by Mr. Dillon: Four Oaks as a North Carolina state-charted bank;
Mr. Dillon contends that the defendants are not exempt because they accepted “fees for collecting on contracts for repayment of loans,”
Bay Cities contends that it is not liable for a direct violation of the CFA and that aiding and abetting liability does not exist under the CFA. The CFA prohibits persons from “engaging] in the business of lending in amounts of’ $15,000 or less without first obtaining a license from the North Carolina Commissioner of Banks.
The CFA was amended in 2006 to expand the evasions provision in § 53-166(b).
The motion to dismiss the CFA claim is granted as to defendants BMO Harris, Four Oaks, and Generations, and denied as to Bay Cities.
d. The North Carolina Unfair and Deceptive Trade Practices Act
To establish a claim under
The Court concludes that Mr. Dillon has stated a claim for relief under this statute.
e. Money Had and Received
Mr. Dillon contends that the defendants are hable for the common law claim of money had and received. “An action for money had and received may be maintained ... whenever the defendant has money in his hands which belongs to the plaintiff, and which in equity and good conscience he ought to pay to the plaintiff.”
Mr Dillon alleges that the defendants are “no longer in the possession” of the funds,
At oral argument, Mr. Dillon attempted to avoid this problem by contending that because a claim for money had and received is an action at law rather than equity, the defendants could be liable as long as they possessed the money at some point.
It is true that in North Carolina a claim for money had and received is an action at law.
f. Unjust Enrichment
To state a claim for unjust enrichment under North Carolina law, Mr. Dillon must allege that “(1) [he] conferred a benefit on the defendant, (2) the benefit was not conferred officiously or gratuitously, (3) the benefit is measurable, and (4) the defendant consciously accepted the benefit.”
CONCLUSION
For the reasons stated herein, the Court will deny BMO Harris’s motion to sever
.Docs. 38, 42, 49. The Court previously denied motions to compel arbitration filed by defendants BMO Harris, Bay Cities, and Generations. See Doc. 100.
. See Text Order, April 10, 2014.
. Docs. 31, 33.
. BMO Harris has filed a "renewed motion” to compel arbitration based on additional evidence and has asked the Court to delay ruling on its motions to dismiss, transfer, and sever, pending a ruling on the "renewed” motion. See Docs. 102-04. Generations has filed a similar "renewed motion” based on additional evidence. Doc. 106, Neither party has cited any authority for the proposition that it is entitled to delay proceedings by filing a second motion in order to overcome eviden-tiary deficiencies in its initial motion. Second, should either party persuade the court that its "renewed” motion should be granted, the Court can take appropriate action, including perhaps vacating this Order as to it. In the meantime, the case should proceed.
. Doc. 1 at ¶¶ 5, 11, 81-103.
. Id. at ¶¶ 84, 88, 92, 96, 99.
. Id. at ¶ 6.
. Id.
. Id. at ¶¶ 40, 46.
. Id. at ¶ 46.
. Id. at ¶¶ 48, 55, 58.
. Id. at ¶ 46.
. Am. Gen. Life & Accident Ins. Co. v. Wood, 429 F.3d 83, 92 (4th Cir. 2005).
. Fed.R.Civ.P. 19(a)-(b).
. Pettiford v. City of Greensboro, 556 F.Supp.2d 512, 517 (M.D.N.C. 2008) (quoting RPR & Assocs. v. O’Brien/Atkins Assocs., 921 F.Supp. 1457, 1463 (M.D.N.C. 1995)).
. Fed.R.Civ.P. 19(a).
. Id.
. Doc. 1 at ¶ 187.
. Id. at ¶ 234.
. Doc. 101 at 58-59.
. Id. at 64.
. U.S. ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476, 479 (7th Cir. 1996) (quotation marks omitted).
. BMO Harris contends that Mr. Dillon "cannot avoid joining a contracting party by pleading tort claims that nonetheless challenge a contract’s validity.” Doc. 39 at 13. However, the cases it cites to support this
. Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (joint tort-feasors); Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F.Supp.2d 1131, 1142 (N.D.Okla. 2001) (same); In re Cotton Yarn Antitrust Litig., 505 F.3d 274, 284 (4th Cir. 2007) (co-conspirators).
. Doc. 43 at 12.
. No. 2:10-CV-901-WKW [WO], 2011 WL 3583745 (M.D.Ala. Aug. 15, 2011).
. Id. at *6.
. Id. at *3-4.
. Id. at *4.
. Id. at *5-6.
. Id. at *6 (distinguishing Multimedia Games, 214 F.Supp.2d at 1142).
. The Court has elsewhere dismissed the CFA claims against the other defendants. See infra Part IV(c).
. N.C. Gen.Stat. 53-166(d); see also discussion infra Part IV(c).
. See supra text accompanying note 21.
. See Fed.RXiv.P. 19(b)(2); see also 7 Charles Alan Wright et al., Federal Practice & Procedure § 1608 (3d ed. 2001) (“For example, when rescission ... might have a detrimental impact on an absent person, money damages may prove to be an appropriate alternative.”).
. Doc. 50 at 4. Four Oaks was the only defendant who presented evidence concerning the operations of the lender with which it worked and the loan the plaintiff obtained from that lender in connection with the mo
. 446 F.3d 541 (4th Cir. 2006).
. Id. at 544.
. Id. (quotation marks omitted).
. Id. at 551-52.
. Id. at 552.
. Id. at 553.
. Id. (internal quotation marks and alterations omitted).
. Id.
. See Trans Energy, Inc. v. EQT Prod. Co., 743 F.3d 895, 902 (4th Cir. 2014) (requiring a party to show that its interests will be harmed in a “tangible way”); Dore Energy Corp. v. Prospective Inv. & Trading Co., 570 F.3d 219, 232 (5th Cir. 2009) ("The factors under Rule 19(b) are concerned with whether actual harm to anyone’s interests will occur if the case proceeds absent certain parties.” (emphasis added)). While the discussion in these cases relates to the analysis under Rule 19(b), it applies equally to the Rule 19(a) analysis.
.Yashenko, 446 F.3d at 544.
. See Doc. 51 at ¶ 16 (indicating that Mr. Dillon repaid part of his loan through use of his debit card, which did not involve the ACH network or any ODFIs).
. See generally, Multimedia Games, 214 F.Supp.2d at 1143 (noting that the sovereign immunity of tribes is "designed to preserve tribal self-governance and independence” and should not be manipulated into "a legalistic loophole to assist non-Indians in the avoidance of civil liability.”)
. Courts are "free to reconsider a previously decided question of indispensability if there is a showing of changed circumstances." 7 Wright et al., supra, § 1609.
. Fed.R.Civ.P. 20(a)(2).
. Maverick Entm’t Grp., Inc. v. Does 1-2, 115, 810 F.Supp.2d 1, 12 (D.D.C. 2011) (internal quotation marks omitted); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("[T]he impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.”).
. Rumbaugh v. Winifrede R.R. Co., 331 F.2d 530, 537 (4th Cir. 1964); see also 7 Wright et al., supra, § 1652.
. His claim against each bank is based on a different loan, and it is not dependent on or related to the loans he received from the other three banks. Nor does he allege any grounds by which one bank could be liable for the acts of another bank.
. See Hinson v. Norwest Fin. S. Carolina, Inc., 239 F.3d 611, 618 (4th Cir. 2001) (upholding joinder of plaintiffs in truth-in-lending claim against lender even though "the factual circumstances of each transaction differed”). The language of Rule 20(a)(1)(A) concerning joinder of plaintiffs and Rule 20(a)(1)(B) concerning joinder of. defendants is the same in relevant part.
. The Court has also considered the factors relevant to transferring the case against BMO Harris to the Eastern District of New York as part of this determination. See infra Part III.
. See Fed.R.Civ.P. 20(b) (providing that after permissive joinder, "[t]he court may issue orders ... to protect a party against ... prejudice”).
. Doc. 33 at 1.
. 28 U.S.C. § 1404(a).
. See supra Part II.
. See Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 527 (M.D.N.C. 1996)
. Remington Arms Co. v. Alliant Techsystems, Inc., No. 1:03CV1051, 2004 WL 444574, at *2 (M.D.N.C. Feb. 25, 2004).
. Moss v. BMO Harris Bank, N.A., Case No. 13-cv-5438 (E.D.N.Y. Sept. 30, 2013).
. See, e.g., Ellicott Mach. Corp. v. Modern Welding Co., 502 F.2d 178, 179 (4th Cir. 1974); Family Dollar Stores, Inc. v. Overseas Direct Imp. Co., Civil Action No. 3:10-cv-278, 2011 WL 148264, at *1-2 (W.D.N.C. Jan. 18, 2011); Remington Arms, 2004 WL 444574, at *1.
. Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999).
. See Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
. Day v. DB Capital Grp., LLC, Civil Action No. DKC 10-1658, 2011 WL 887554, at *12 (D.Md. Mar. 11, 2011) (collecting cases).
. Durante Bros. & Sons, Inc. v. Flushing Nat’l Bank, 755 F.2d 239, 248 (2d Cir. 1985) (internal quotation marks and alterations omitted); Day, 2011 WL 887554, at *13.
. United. States v. Biasucci, 786 F.2d 504, 514 (2d Cir. 1986).
. N.C. Gen.Stat. § 24-1.1(a), (c).
. Gilbert v. Residential Funding LLC, 678 F.3d 271, 279 (4th Cir. 2012) (quoting Swindell v. Fed. Nat’l Mortg. Ass’n, 330 N.C. 153, 159, 409 S.E.2d 892, 895 (1991)).
. Swindell, 330 N.C. at 159, 409 S.E.2d at 895-96.
. Applewood Props., LLC v. New S. Props., LLC, 366 N.C. 518, 522, 742 S.E.2d 776, 779 (2013).
. Id. (quotation marks and alterations omitted).
. Id. at 523, 742 S.E.2d 776 (quoting Dickson v. Rucho, 366 N.C. 332, 344, 737 S.E.2d 362, 371 (2013)).
. N.C. Gen.Stat. § 24-1.1(a).
. See In re Tetterton, 379 B.R. 595, 600 (Bankr.E.D.N.C. 2007) (declining to extend usury liability to loan servicer); Hansen v. Jonas W. Kessing Co., 15 N.C.App. 554, 555-56, 190 S.E.2d 407, 409 (1972) (declining to extend usury liability to mortgage broker).
. N.C. Gen.Stat. § 53-191.
. Doc. 1 at ¶ 13.
. Id. at ¶ 12.
. Id. at ¶ 14.
. Id. at ¶ 15.
. Doc. 71 at 29.
. N.C. Gen.Stat. § 53-166(a).
. Id. § 53-166(b).
. Doc. 65 at 28-29.
. Doc. 43 at 26-27.
. Act of Aug. 13, 2006, 2006 N.C. Sess. Laws 243.
. Id.
. Id.
. Id.
. As noted supra, the statutory remedy for this claim raises the possibility that the lender is an indispensable party. This question has not been thoroughly briefed, and as noted its implications can be explored later.
. N.C. Gen.Stat. § 75-1.1.
. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C.App. 630, 640, 624 S.E.2d 371, 378 (2005) (quoting Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001)).
. Id. (quoting Gray v. N.C. Ins. Underwriting Ass’n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000)) (internal brackets and quotation marks omitted).
. Matthew W. Sawchak & Kip D. Nelson, Defining Unfairness in "Unfair Trade Practices,” 90 N.C. L.Rev.2033, 2044-45 (2012) (citing Gray, 352 N.C. at 71, 529 S.E.2d at 683).
. Primerica Life Ins. Co. v. James Massengill & Sons Const. Co., 211 N.C.App. 252, 259, 712 S.E.2d 670, 676 (2011) (quoting Allgood v. Wilmington Sav. & Trust Co., 242 N.C. 506, 512, 88 S.E.2d 825, 829 (1955)).
. Ridley v. Jim Walter Corp., 272 N.C. 673, 677, 158 S.E.2d 869, 872 (1968).
. Doc. 1 at ¶ 223.
. Doc. 101 at 110-11.
. 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).
. Id. at 213, 122 S.Ct. 708.
. Id.
. See Wilson v. Lee, 211 N.C. 434, 434, 190 S.E. 742, 743 (1937).
. See Primerica, 211 N.C.App. at 259, 712 S.E.2d at 676.
. Metric Constructors, Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 72 Fed.Appx. 916, 920 (4th Cir. 2003) (citing Booe v. Shadrick, 322 N.C. 567, 568, 369 S.E.2d 554, 555-56 (1988)).
. Doc.31.
. Doc. 33.
. Docs. 38, 42, 49.
Reference
- Full Case Name
- James DILLON v. BMO HARRIS BANK, N.A.
- Cited By
- 23 cases
- Status
- Published