United States: Ambiguity Continues As SCOTUS Declines To Review Madden v. Midland Ruling

On June 27, 2016, the Supreme Court of the United States denied the petition for certiorari in Madden v. Midland Funding ("Madden"), a case closely watched by the financial industry. With the Second Circuit's decision remaining good law, existing transactions with exposure to bank-originated debt transferred to nonbanking entities are at risk. Transaction parties depend on contracted interest rates to determine the purchase price of debt in the secondary market and to model cash flow for asset-backed transactions which rely on interest proceeds to cover debt service. Hedge funds, securitization vehicles and other purchasers of bank-originated debt should evaluate their existing facilities and portfolios, as Madden poses a threat of litigation and a decrease in cash flow (and thus an increase in defaults) for these transactions.

The Facts

In Madden, the plaintiff, Saliha Madden, a resident of the state of New York, opened a credit card account with Bank of America N.A., a national bank, in 2005. Bank of America transferred the account the following year to FIA Card Services N.A. ("FIA"), an affiliated national bank headquartered in Delaware. At the time of the account's transfer to FIA, Madden received a "Change in Terms" document which contained a Delaware choice of law clause. In 2008, Madden failed to make payments in accordance with the terms of her account, and FIA "charged off" the account and sold the debt to Midland Funding LLC ("Midland Funding"), one of the defendants. Midland Credit Management Inc., the other defendant, is an affiliate of Midland Funding and services Midland Funding's consumer debt accounts. Neither defendant is a national bank. In 2010, Midland sought to collect payment from Madden, applying an interest rate of 27% per year, a rate which was permitted under Delaware law but usurious under New York law.

The Arguments and the Court's Analysis

Madden brought a putative class action alleging violations of the Fair Debt Collection Practices Act ("FDCPA") and New York's usury law.

The defendants contended that the claims failed as a matter of law because (i) state law usury claims and FDCPA claims predicated on state law violations against a national bank's assignees, such as the defendants, are pre-empted by the National Bank Act ("NBA"); and (ii) the agreement governing Madden's debt requires the application of Delaware law, under which the interest charged is permissible. The District Court for the Southern District of New York entered judgment for the defendants.

However, the United States Court of Appeals for the Second Circuit reversed the district court's holding as to NBA pre-emption, vacated the district court's judgment and denial of class certification, and remanded the case to address whether the Delaware choice of law clause precluded Madden's claims. The Second Circuit held that a loan originated by a national bank ceased to have pre-emptive effect under the NBA once it was assigned to a nonbank debt collector, because the assignee was not a nationally chartered bank and it was collecting on behalf of itself and not on behalf of a national bank.

On June 27, 2016, the Supreme Court of the United States denied the petition for certiorari.

What wasn't included in the Second Circuit's reasoning was the long-standing "valid when made" principle. In 1833, the Supreme Court of the United States held in Nichols v. Fearson "that a contract, which, in its inception, is unaffected by usury, can never be invalidated by any subsequent usurious transaction." The Fifth Circuit and the Eighth Circuit have also rendered decisions supporting the "valid when made" principle, providing that a loan does not become invalid upon assignment (see Krispin v. May Department Stores, 218 F.3d 919, 8th Cir. 2000; and FDIC v. Lattimore Land Corp., 656 F.2d 139 5th Cir. 1981). This fundamental principle of contract law is the basis for marketplace lending, which relies on the transferability of loans originated by national banks with their original interest rate term, among others. By ignoring this principle in its analysis, the Second Circuit has created uncertainty for the marketplace lending sector, which could have a chilling effect on the volume of transactions in that space.

Next Steps

The parties will go back to the district court and determine whether the Delaware choice of law clause precludes Madden's claims. If the district court holds that the choice of law clause precludes Madden's claims, then market participants can proceed with certainty if the debt has a proper choice of law clause.

The impact of Madden can be far-reaching for all participants in transactions involving the transfer of debt originated by a national bank, particularly for investors acquiring loans originated by the growing number of marketplace lenders. While Madden is technically controlling only in the Second Circuit (New York, Connecticut and Vermont), the case could in the future be followed in other jurisdictions. Until there is more certainty, market participants should be aware that the permissible interest rate charged by a national bank might not pre-empt state usury laws once the debt is transferred to a non-national bank and should model and price their transactions accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Arnold & Porter
Sheppard Mullin Richter & Hampton
Jones Day
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Arnold & Porter
Sheppard Mullin Richter & Hampton
Jones Day
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions