Mamot Feed Lot & Trucking v. Hobson
Opinion of the Court
Appellants were each either customers of the Exchange Bank of Gibbon (Bank) or have been sued by the Bank. The appellants brought this action as a class action against the Bank, its holding company, and various shareholders, officers, and employees of the Bank, following the criminal indictment of Scott Hobson, the Bank’s president, for defrauding the bank of nearly one million dollars. The appellants brought federal usury and antitying claims against the Bank based on Hobson’s actions, relying on 12 U.S.C. §§ 85, 86 (the National Bank Act); 12 U.S.C. §§ 1972, 1975; and 12 U.S.C. § 1831d (the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA)). All of the appellees except Hobson (collectively the “Bank Defendants”) filed a joint motion to dismiss for want of jurisdiction as to the National Bank Act claim and for failure to state a claim on the remaining claims, which the district court
I.
Exchange Bank is a federally-insured, state-chartered bank located in Nebraska.
Following Hobson’s indictment on fraud charges, the Appellants filed this action in federal court claiming that the Bank Defendants had charged them usurious interest. The basis for the usurious interest claim was that “Hobson, without permission, contrary to the documents, but with the full approval of Defendant Exchange Bank of Gibbon, et. al. deliberately and intentionally misstated or took collateral of Plaintiffs, for his or others [sic] benefits, misstated the value of the collateral on the books and records of Defendant Exchange Bank, and that all amounts misappropriated, stolen, misstated, diverted, by Defendant Scott Hobson shall be deemed excessive interest paid by plain-tiffiborrower.... ” (Appellants’ App. at 210.) The complaint also alleged that Hobson “routinely, systematically and deliberately overstated the statements of financial condition of said borrower so that the loan could be ‘booked’ as a legitimate asset on the books and records of defendant Exchange Bank,” and that Hobson “deliberately converted collateral of said Plaintiffs and deliberately diverted payments on loans to his own account thereby again misstating the books and records of the bank, thereby triggering a default and thereby triggering phoney acceleration clauses and attorney’s fees clauses, all of which constitute interest which is excessive.” (Appellants’ App. at 211.)
The complaint relied solely on federal question jurisdiction under 28 U.S.C. § 1331, citing 12 U.S.C. §§ 85, 86; 12 U.S.C. §§ 1972, 1975; and 12 U.S.C. § 1831d. The plaintiffs sought a declaratory judgment that the Bank Defendants charged and received usurious interest, entitling the plaintiffs to damages in the amount of $50 million, allegedly representing twice the amount of usurious interest paid by the plaintiffs. The Bank Defendants filed a Motion to Dismiss on March 19, 2007. The district court subsequently granted the motion to dismiss as to all plaintiffs except defendant Scott Hobson, who did not join in the motion, and the court certified the order as immediately appealable under Rule 54(b) of the Federal Rules of Civil Procedure.
II.
We review the district court’s dismissal of the National Bank Act claim for want of federal jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure de novo, accepting all factual allegations in the complaint as true and view
Appellants claim that the Bank Defendants’ actions amounted to the illegal charging of usurious interest in violation of § § 85 and 86 of the National Bank Act.
The appellants also claimed that the Bank Defendants’ actions violated 12 U.S.C. § 1831d, which, by its explicit terms, does apply to federally-insured state-chartered banks. See Discover Bank, 489 F.3d at 604 (noting that § 1831d “is to state-chartered banks” as the National Bank Act “is to national banks”). Section 1831d allows state-chartered banks to charge up to a specified interest rate and explicitly preempts state laws that set lower ceilings. See § 1831d(a). It also provides a civil cause of action for a person who is charged a rate higher than that allowed in subsection (a), specifying the remedy of forfeiture of the entire interest charged as well as damages in the amount
The forfeiture and damages remedies of § 1831d(b) apply to “the taking, receiving, reserving, or charging [of] a greater rate of interest than is allowed by subsection (a).” A rather obvious prerequisite to a claim of usurious interest under § 1831d is that the overcharge relate to a charge of interest. Regulations interpreting § 85 of the National Bank Act define “interest” to “include[] any payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended.” 12 C.F.R. § 7.4001(a).
Appellants pick out the term “compensating” from the definition of “interest” and assert that they state a claim for usurious interest because “the bank was compensated by Defendant Hobson’s ... misallocation and theft.” (Appellants’ Br. at 19.) We sincerely doubt that benefit-ting (assuming that the Bank would in some way benefit from Hobson’s alleged action of misallocating nearly $1 million from the Bank) from another’s fraudulent activity amounts to compensation. In any event, it is not just any “compensation,” however broadly construed, that meets the definition of interest. The compensation must relate to the extension of credit. The regulation lists examples, including late fees, insufficient funds fees, overlimit fees, annual fees, cash advance fees, and membership fees as included within the definition of “interest.” § 7.4001(a). Although read broadly, the term “interest” is not without limitation. The regulation explicitly excludes from the definition of “interest” such fees as appraisal fees, credit insurance premiums, finders fees, document or notary fees, or fees charged for obtaining a credit report. Id. These fees are surely compensation to the bank, certainly more closely tied to the extension of credit than the Appellants’ claim that ben-efitting from fraudulent activity is compensation related to the extension of credit. Yet, such fees, not directly tied to the extension of credit, are excluded from the definition of interest to which the federal usury laws apply. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 745, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (concluding that the regulation’s distinction between charges assigned to specific expenses and charges “assessed for simply making the loan” was a rational distinction entitled to deference even though “in the broadest sense all payments connected in any way with the loan ... can be regarded as compensating the creditor for the extension of credit” (internal marks omitted)). It goes without saying that if appraisal fees and credit reporting fees are excluded from the term interest, so too is a claimed benefit from the misallocation and theft of collateral and loan payments. See Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1302 (8th Cir. 1997) (“We have little difficulty concluding that the Comptroller’s interpretation of ‘interest’ as excluding insurance premiums is reasonable.”). The first amended complaint, alleging broadly that the Bank Defendants received compensation from Hobson’s fraudulent acts, simply fails to state a claim under § 1831d. The district court properly dismissed this claim under Rule 12(b)(6).
The district court also dismissed the tying claims based on § § 1972 and 1975. Although the first amended complaint cited to those Code provisions in the jurisdictional section of the complaint, it provided absolutely no facts to support an
III.
The district court’s judgment is affirmed.
. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
. Although there is a factual discrepancy in the record about whether Eldon Dubas, Jerry Rowse, Ray Doggett, and Dale and Delores Brabander were customers of the Bank (see Appellants' App. at 213; Appellants’ Br. at 7), the factual dispute does not change the outcome of this appeal, and we recite the facts as stated in the complaint.
. The Appellants' reliance on Discover Bank v. Vaden, 489 F.3d 594 (4th Cir. 2007), cert. granted, - U.S. -, 128 S.Ct 1651, 170 L.Ed.2d 352 (2008), is misplaced as to the National Bank Act claims. Discover Bank held that 12 U.S.C. § 183Id completely preempted state law usury claims against federally insured, state-chartered banks. Id. at 606. Section 183Id is not part of the National Bank Act, however, see 12 U.S.C. § 38, and Discover Bank does not address the separate issue of whether §§85 and 86 (as opposed to § 1831 d) apply to state-chartered banks.
. Courts construe the parallel provisions of § 85 and § 1831d similarly, as § 1831d was modeled after § 85. See Discover Bank, 489 F.3d at 606.
Reference
- Full Case Name
- MAMOT FEED LOT AND TRUCKING, A Nebraska Partnership Eugene P. Sonnenfeld, An Individual and On Behalf of a Class Similarly Situated John Richter, Husband and On Behalf of a Class Similarly Situated Rosemary Richter, Wife and on Behalf of a Class Similarly Situated Dennis Land, Husband and on Behalf of a Class Similarly Situated Rita Land, Wife and on Behalf of a Class Similarly Situated Dave Vest, Husband and on Behalf of a Class Similarly Situated Mary Vest, Wife and on Behalf of a Class Similarly Situated Robert E. Smith, Husband and on Behalf of a Class Similarly Situated Teresa R. Smith, Wife and on Behalf of a Class Similarly Situated Ed Boltz, An Individual and on Behalf of a Class Similarly Situated Ray Doggett, An Individual and on Behalf of a Class Similarly Situated, doing business as Doggett Hay Coach Eldon Dubas, An Individual and on Behalf of a Class Similarly Situated Dale Brabander, Husband and on Behalf of a Class Similarly Situated Delores Brabander, Wife and on Behalf of a Class Similarly Situated Jerry Rowse, An Individual and on Behalf of a Class Similarly Situated v. Scott HOBSON, Individually and in His Official Capacity, as Former President of Exchange Bank Exchange Bank, A Federally Insured State-Charter Bank, also known as Exchange Bank of Gibbon Collectively Exchange Company, A Nebraska Bank Holding Company Dennis Schardt, Individually and in His Official Capacity Susan Schardt, Individually and in Her Official Capacity Brian Schardt, Individually and in His Official Capacity Tom Baxter, Individually and in His Official Capacity Sue Bolin, Individually and in Her Official Capacity Allissa Kroll Bombeck, Individually and in Her Official Capacity Janet Carr, Individually and in Her Official Capacity Linda Clevenger, Individually and in Her Official Capacity Craig Dewalt, Individually and in His Official Capacity Vaughn Duncan, Individually and in His Official Capacity Stephen England, Individually and in His Official Capacity Kim Hannon, Individually and in Her Official Capacity Roger Heffelfinger, Individually and in His Official Capacity Michelle High, Individually and in Her Official Capacity Tim Horacek, Individually and in His Official Capacity Kevin Hynes, Individually and in His Official Capacity Heather Jurgens, Individually and in Her Official Capacity Jeff Ko-nen, Individually and in His Official Capacity Dee Krolikowski, Individually and in Her Official Capacity Sheri Lyons, Individually and in Her Official Capacity Pat Manfull, Individually and in Her Official Capacity Patrick McGuire, Individually and in His Official Capacity Pat Meyer, Individually and in Her Official Capacity Rebecca Rathjen, Individually and in Her Official Capacity Deb Slack, Individually and in Her Official Capacity
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