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Spokeo, Activist Courts, and Consumer and Debt Law

People involved in debt and consumer law have heard a lot about “Spokeo” in the past few years, and they’re going to hear more. Spokeo is a wolf in sheep’s clothing, a Supreme Court decision purporting to limit the Judicial system’s ability to override the functions of the other branches of government, but actually itself a vast usurpation of that power. It has been used to gut consumer and debt law protections enacted by Congress, and it will increasingly be used to do so. I expect it to be extended to state courts and jurisdiction as well.

So, what is “Spokeo” and how does it usurp legislative power? We discuss these issues and suggest some possible approaches in the following article.

Spokeo” is the way many refer to a case and the Supreme Court decision that decided it. The case was Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).  Spokeo, Inc. was a business that compiled information on essentially everybody and made it available to people searching it. Some of the information was free, and some was only available upon payment (not a distinction relevant to the case). It disseminated information on creditworthiness and lifestyle and general biographical information, and its reporting on creditworthiness (allegedly) brought it within the reach of the Fair Credit Reporting Act (FCRA).[1]

In the case of Robins (the plaintiff in the suit), Spokeo reported that he was in his mid-fifties, employed, affluent and married – all of which Robins alleged was false. Robins claimed the information had hurt his attempt to obtain employment. Robins brought suit under the FCRA.[2]

The Supreme Court held (essentially) that he had not alleged a “concrete, actual injury.” Probably every single person reading this article intuitively knows how false this holding was, in reality.

The Court based its analysis on Article III of the Constitution, which limits judicial action to actual “cases and controversies.” They pointed out a fundamental concept of the law, which is that courts are only empowered to hear cases involving real people with real adversary interests – otherwise people would make up cases to test abstract limits of the laws as a sort of judicial review. To keep the Judicial branch in its own lane, courts have determined that, to satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability (ability of a court order to “solve” the wrong that has been committed. With respect to the injury requirement, the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough: there must be some harm already, or some harm must be imminent.[3]

Article III’s “Standing” Requirement and the Federal Court’s Attack on Statutory Consumer Rights

To satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability. With respect to the injury requirement, which the Supreme Court discussed at length in its seminal opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough.

All of these requirements are designed to insure that a litigant is protecting his or her own specific rights and not some theoretical general or public right which would be akin to judicial review.

In Spokeo, the Supreme Court seemed to take the position that the “harm” or injury Robins alleged was a procedural violation – like he was some purist offended by Spokeo’s carelessness in keeping information. The harm, however, was crystal clear and not at all theoretical or akin to judicial review: Spokeo had wrong information about Robins. Having and disseminating false information about him WAS the wrong, and it was also the very “harm” that the FCRA was designed to prevent. The fact that the incorrect information was also damaging to him was irrelevant to the Article III analysis, though of course it would be relevant to the amount of damages he should have gotten.

The Court was not unaware of this; its decision was a blatant attack upon civil and consumer rights, many of which are quite difficult to quantify and are intangible. The Court is hostile to these rights, and Spokeo was a usurpation of the legislature’s Constitutional power to create them and give people the right to enforce them. Thus it is a lasting monument to the hypocrisy of the current Supreme Court. There will likely be many more over the coming years. The Spokeo decision has been used to attack civil and consumer rights from the instant it was written, most notably, perhaps, the Telephone Consumer Protection Act (TCPA), but what will be the harm to a debt litigant under the FDCPA of the debt collector failing to publish warnings in conspicuous print if the consumer sees the warning anyway? What’s the harm of making harassing phone calls late at night? The Supreme Court has put itself in the business of evaluating and quantifying those harms, while the FDCPA made them per se violations. The courts will use Spokeo to attack the FDCPA as well.

State Law Applicability of Spokeo

Even a casual reading of Spokeo will reveal that the Court pretended to be careful to limit its ruling to federal courts. There is no doubt the state courts will follow, however. Note the reasoning, applicable to every state, in the following paragraph of a New York State opinion. I include the links so you can more conveniently track down the cited cases:

“Under the common law, there is little doubt that a `court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected'” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991], quoting Schieffelin v Komfort, 212 NY 520, 530 [1914]). Related to this principle is “a general prohibition on one litigant raising the legal rights of another” (Society of Plastics, 77 NY2d at 773). Thus, if the issue of standing is raised, a party challenging governmental action must meet the threshold burden of establishing that it has suffered an “injury in fact” and that the injury it asserts “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]).[2] The injury-in-fact requirement necessitates a showing that the party has “an actual legal stake in the matter being adjudicated” and has suffered a cognizable harm (see Society of Plastics, 77 NY2d at 772) that is not “tenuous,” “ephemeral,” or “conjectural” but is sufficiently concrete and particularized to warrant judicial intervention (Novello, 2 NY3d at 214; see Spokeo, Inc. v Robins, 578 US __, __, 136 S Ct 1540, 1548 [2016]).

MENTAL HYGIENE v. Daniels, 33 NY 3d 44, 50 – (NY App. 2019).

What to Do

 

People familiar with my writing and videos will perhaps recognize that some of the language in Mental Hygiene is familiar. We argue the issue of standing all the time at a more basic level: a debt collector must show that it owns the right to sue – the injury in fact requirement is a constitutional necessity that the plaintiff show it owns the debt in question. Provided you dispute the debt collector’s ownership, which I have said every defendant should do in every case.

If you are alleging a violation of the FDCPA or the FCRA, you must obviously take some care to allege actual harm closely connected to the right you claim was violated.  If they are suing you for debt beyond the statute of limitations, their unfair collection practice has caused you emotional distress, the expense of hiring a lawyer or seeking help, the time reading, thinking about and responding to the suit, the price of paper in filing your answer or responsive motion, postage incurred in providing notice to the debt collector, gas in taking the suit to be filed, and whatever else you can think of.

The courts are extremely aggressive in TCPA litigation, where they have held that “a single emailed fax” was not a cognizable harm even though Congress said it was, and even though even a single emailed fax would require some time to read and elicit some emotional response. If ONE emailed fax isn’t enough despite the fact that Congress made it so, then what about two? Or twenty-two? Expect the courts to apply this type of analysis routinely, and state your damages in as lurid and concrete a fashion possible.

Many state consumer protection laws are subject to what is called “strict liability” and do not require any harm at all – even a mere “technical” violation creates liability. The Supreme Court is willing to recognize that a trespasser, by stepping one foot across the line, has caused cognizable damage even though it may not be seen, felt, or even exist at all – it’s a legal wrong (to a property interest most often held by the wealthy). Will it see deceptive sales language that did not deceive a consumer as a violation in the same way? I believe a careful litigant should consider alleging shock and outrage, perhaps a call to a lawyer  or at least photocopying expense – something, anything – to show actual harm until some theoretical limitation has been placed on the courts’ “discretion” to reconsider and reevaluate damages determined by the legislature. Spokeo abandoned the principle of Judicial limitation.

[1] Among other things, the FCRA states that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. § 1681n(a).

[2]Apparenty Robins did not dispute his “report” (and perhaps he couldn’t because of the nature of Spokeo) and sue under the provisions provided by that. Instead, he seems to have alleged a failure of Spokeo to use the required care to obtain information. This may have been a litigation decision based on the attempt to bring the claim as a class action, which requires “commonality” of legal issues among the class members. If so, it was the wrong decision for Robins’s individual chances, as it turned out.

[3] “Imminence” has created some interesting legal issues not important here. The courts have held that an enacted law may create imminent harm, but they have also held that where the executive has renounced enforcement of the law, the harm is not imminent.

Usury and Non-Bank Loans

I have had my hands full lately with the National Banking Act (NBA). Specifically, the question is whether the NBA, which protects national banks from usury claims, applies to debt collectors which buy the debts. It turns out that question has several possible answers.

National Banking Act Allows Usury

Here’s the background: some states have laws limiting the amount of interest lenders can charge. Under the NBA, a bank can issue credit cards that charge high interest in states with usury laws. Yes, it’s a scam (they call it “exporting interest rates”), but they can. What happens if your debt gets sold to a debt collector? The NBA applies to national banks, not other businesses, so you might think a debt collector would be committing usury by trying to collect illegal rates. That would also violate the Fair Debt Collection Practices Act (FDCPA).

Under Madden, Debt Collectors Don’t Receive NBA License to Commit Usury, Regulation Changes That

The Second Federal Circuit of Appeals found that debt collectors collecting usurious rates was, in fact, illegal in a case called Madden v. Midland Funding, LLC 786 F.3d 246 (2015). Some other circuits, notably the 8th, have tended in the other direction. The Supreme Court denied certiorari (review) of Madden, so it remains in place as law of the 2nd Circuit. Unfortunately, the debt collectors managed to sneak a new regulation through that negates Madden. That regulation is at: 12 C.F.R. part 331, 84 Fed. Reg. 66845.

Possible Outcomes

This leaves us in an odd place. If you are in the 2nd Circuit currently being sued by a debt collector on a card with interest higher than your state allows, you have a powerful defense and a counterclaim probably under the usury law and FDCPA. I think it is still good, though you can expect some fighting on the question of retroactivity of the regulation. What about claims arising in the future, though? What about claims outside of the 2nd Circuit?

Courts are supposed to give “great deference” to regulations duly issued by agencies charged with enforcing specific laws. Without going into details, this regulation would seem to fit that bill and should probably receive that deference. It is not unheard of for the courts to reject such a regulation, but it is rare, and, in my opinion, very unlikely in this situation – even in the Second Circuit. Thus I believe that in the future this defense will not be effective. I do believe it could be raised in good faith however, at present, and that may have some advantage for a pro se defendant. It will be a long shot even in the Second Circuit, however, and longer elsewhere.

What about claims existing now but outside the 2nd Circuit? Will the regulation affect the way the 8th Circuit, for example, reads Madden? It probably should not, but it probably will. The regulation is supposedly based on the FDIC’s reading of an existing statute rather than a new legislative enactment – it will probably be considered an authoritative interpretation of the statute even though, in practical effect it is a new legislative act. But this is not certain, and again, I think the issue may have advantages for pro se litigants to raise, and winning is not out of the question in my opinion.

What if you live in a state with a usury law and a debt collector is trying to collect higher rates – but is not suing you. Can you sue them? I believe the answer is yes – all the foregoing analysis applies to the attempt to collect the debt, not necessarily limited to litigation attempting to collect the debt.

Incidentally, the NBA explicitly extends to all FDIC-insured entities. This question came up in a teleconference relating to loans issued by WebBank, which apparently IS FDIC insured. Our consideration of whether WebBank itself can charge usurious rates, then, must conclude that it can indeed do so.

One might consider that enforcing an explicitly illegal contract (usury) would be void as against public policy under state law. And so it is. However, the federal preemption doctrine that the NBA invokes overrules that – states cannot claim a federal policy is against their public policy.

If you get a loan now and at some point in the future a debt collector tries to collect usurious rates that would have allowed to the original lender, I think you’re out of luck regarding the defenses and counterclaims we’ve discussed here. The new regulation permits it, as I read it. Of course you still have all the usual defenses and attacks we always use against debt collectors, so your chance of winning remains srong.

FDCPA and Minnesota and the Dakotas’ “Pocket Service”

Under the Fair Debt Collection Practices Act (FDCPA), a debt collector is required to provide written notice of your right to dispute a debt within five days of its first attempt to collect the debt. See 15 U.S.C. Sec. 1692g(a). The law states that “a communication in the form of a formal pleading in a civil action shall not be treated as an initial communication under this section.” 15 US.C. Sec 1692g(d). The question we address here is whether the system Minnesota and the Dakotas use, which provides for service of a document that is not yet a civil action, is excluded from the definition of “initial communication.” In plain English, if a document may become part of a lawsuit, is serving it upon a debtor an initial communication under the FDCPA requiring the disclosures of Sec. 1692g(a). We argue that it is.

That would make most lawsuits, as they are currently being served in Minnesota and the Dakotas, a violation of the FDCPA.

“Pocket Service”

Minnesota and the Dakotas have a system of lawsuit initiation that is different than that of all other states, called “pocket service.” Under this procedure, plaintiffs are permitted to create what look like lawsuits and petitions and serve them on defendants without ever having filed suit. According to Minnesota law, this “commences” the action. MN Rule of Civil Procedure 3.1. Then, if the defendant fails to answer in time, the plaintiff can file suit and seek a default judgment. If the defendant does answer, however, the would-be plaintiff is free to leave the suit unfiled. It is “deemed” dismissed with prejudice if not filed within a year, MN R. Civ.P. 5.4, but “deemed” means, as is obvious, that it is NOT, in fact, dismissed – because it was never filed. Given that roughly 85% of debt cases are not answered but are in fact defaulted, while in almost all of the cases in which people do intelligently defend themselves the defendants win, pocket service is patently unjust in debt collection cases.

But our question here is, must the petition in a state allowing pocket protection include the right to dispute the debt? Or to put it slightly differently, is service of a petition and summons in a case which has not been filed constitute an “initial communication” for purposes of the FDCPA’s disclosure requirements? Our position is that it does, and that a debt collector whose first contact with a debtor is pocket service must include within that written document a notice of right to dispute.

They never do at present.

Further, even if they did include notice of the right to dispute, the pendency of the lawsuit would probably “overshadow” the right to dispute and be another violation of the FDCPA.

Here is the operative language of 15 U.S.C. Sec. 1692g:

(a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication… send the consumer a written notice containing —

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Under the statute, pleadings of an “action” are not initial communications for purposes of the statute. Here is that provision at 15 U.S.C. Sec. 1692g (d):

(d) Legal pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

At first blush, Sec. 1692g(d) would seem to make a summons not an initial communication, but note that it says formal pleading “in a civil action.” The FDCPA has a section of definitions at 15 U.S.C. 1692a. It includes no definition of “civil action,” probably because the term has a widely accepted definition that it is a lawsuit that has been filed in court. With pocket service, no suit has been filed, and no suit need ever be filed. It is clearly not a pleading in a civil action. At most, it’s a pleading in what may become one.

Under Minnesota law, the action is supposedly “commenced” by service (Rule 3.1), but 15 U.S.C. Sec. 1692g(d) is federal law subject to federal interpretation – it is not governed by Minnesota’s vague use of the word “commenced.” At the time service is made, no court has knowledge of or jurisdiction over the matter – there has been no judicial involvement at all – and there may never be. Such a document cannot reasonably be construed as an actually existing lawsuit.

In addition to the plain language of the statute referring to a “civil action” and not a “potential civil action,” courts should require the FDCPA warnings in pocket service because the FDCPA is a “remedial” statute that should be read broadly and it is necessary to protect the interests the FDCPA requirements were designed to protect.

The purpose of the dispute provision of the FDCPA is to prevent debt collectors from pursuing people who do not owe the money. Congress had found that many such suits resulted in default judgments that were unjust. That risk, and that result, are plainly present in the pocket service jurisdictions. Moreover, as I understand the law, a debt collector can continue to communicate – completely free of the FDCPA – for up to a year under the most coercive conditions imaginable, before needing to file suit and submit to a court’s oversight.

The justification often given for exempting pleadings in a suit from the protections of the FDCPA is that once suit is filed, a court has oversight of the matter and can prevent overreaching and unjust behaviors. If pocket service is permitted without the notices required by the FDCPA, then the protections are withdrawn without that judicial oversight. Indeed, that state of affairs would enable the very thing the FDCPA was designed to prevent for the very reason that it allows debt collectors to seek default judgments without costs or judicial oversight, but to drop the case in the event a defense is offered, also without cost. So frivolous and unjust suits are encouraged, and debt collectors – notorious for their dishonesty and overreaching – would be permitted to set up a “heads I win, tails you lose” scenario fundamentally at odds with the purpose of the FDCPA.

If the defendant appears and defends, then the quasi lawsuit can continue without judicial oversight for up to a year (or even beyond) without a court even becoming aware of it. Such a situation is ripe for abuse, and there can be no doubt that is being abused on a routine basis.

The fact that Minnesota and the Dakotas would allow such a process for lawsuits other than debt collection may reflect badly on them but has no effect on the FDCPA. Under the Supremacy clause of the constitution, Federal law governs where there is any conflict with state law. The FDCPA makes pocket service without the notices required by the FDCPA illegal.

Genetic Privacy and Government Data Bases

Michael Connelly is one of my favorite authors, and he’s just come out with a new novel, Fair Warning. It is, like so many Connelly books, about serial killers. In this one, the killer appears (I haven’t finished the book yet) to be using a company selling genetic family tracing information to locate victims. Unlike any other Connelly book of which I’m aware, Connolly uses a real person as a character, and a real business of which he is actually a part (FairWarning.com). He also makes this point (and verifies that it is current law): the marketing of genetic information is not regulated by the government.

I see those messages as activism,  by Connelly, although the message that a business or type of business is unregulated by the government is far enough from my main concern on this issue that I haven’t looked to see if Connelly has actually identified what he was doing as activism. In my opinion, the government itself poses the far greater danger, and of course government always exempts itself from regulation.

Here are the facts. In the book, the company in question was selling genetic sample packs. You fill them out, give them to the company, they do a genome analysis and tell you, among other things, whether you have unknown family members. The company makes very little money off of its customers, and it gets rich by selling their anonymized information to companies all over the world. (All of this happens in real life. There’s even a cliche about it: if you don’t know how a company makes its money, YOU are the product.)

In addition, there are many other sources of “bio-information” about people. Apple (at least) lets you use your fingerprint as the security password controlling whether or not a phone opens. And everywhere you go there are video cameras videoing you and everybody. Even as you read this article, police are using those camera images to track down suspects related to the protests happening everywhere. Facebook keeps everything you give them, and as much as they can appropriate with their snooping software, as well. Companies track the location of your mobile phone 24/7 and store the information forever, and this, I suppose, will be the basis for the “contact-tracing” apps we keep hearing about. I keep hearing that Microsoft or other companies are working on microchips that could be embedded in our bodies that would store and transmit various biological information.

There is a vast amount of information out there linking your genetics, lifestyle, and looks, your computer habits and identities, and every other conceivable fact about you. It is all accessible to government, and computers now have the capacity to assimilate it and use it in many ways.

Of course there’s a fox (or many foxes) for every hen house, and that’s what Michael Connelly likes to write about (which he does, superbly). I am concerned with the bigger question: is freedom possible when we all live in such a hen house? I fear that it already isn’t possible, but that if it still is, it won’t be for long. I believe protecting, restricting and reducing such information is everyone’s responsibility – everyone who believes in freedom, anyway.

To link this to debt collection, which is my normal task, is simple. The existence of all this information makes it easier for debt collectors to find you and your money. Makes it easier for them to sue you, and whatever makes it easier to sue you makes it more likely that they will. And it makes it more likely that your information will be stolen and fraudulent accounts will be created in your name. The more information the scammer has, the harder it will be for you to clear your record.

Moratorium on Evictions

There’s a New Moratorium in Town

With evictions beginning to happen, the feds have stepped in with an eviction moratorium. See, hosted.ap.org/berkshireeagle.
You have to prove four things to block an eviction: 1) Income < 99,000/yr if single; (2) you have sought government assistance to pay; (3) you can’t pay because of “Covid-19 hardships” and (4) likely to become homeless if evicted. The courts supposedly determine whether the moratorium applies in specific instances. The fact that the moratorium is a *defense* to eviction rather than a ban on access to the courts for landlords seeking eviction suggests that some landlords will ignore the moratorium and press on with evictions. And it raises issues of proof as to what must be shown and how, so it is not an ideal solution even to the evictions.
On the other hand, if enough people assert the right, it may simply cause cost-conscious landlords not to bring eviction suits. The problem there is that landlords need and want their rent, and in most places the legal fees for asserting an eviction are not much of a deterrent to bringing an eviction action. Thus landlords have a large incentive to try to evict and small reason not to go for it even if they shouldn’t get it.

Usury and Non-Bank Loans

National Banking Act and Debt Law

I have had my hands full lately with the National Banking Act (NBA). Specifically, the question is whether the NBA, which protects national banks from usury claims, applies to debt collectors which buy the debts. It turns out that question has several possible answers.

Some Background

Here’s the background: some states have laws limiting the amount of interest lenders can charge. Under the NBA, a bank can issue credit cards that charge high interest in states with usury laws. Yes, it’s a scam (they call it “exporting interest rates”), but they can. What happens if your debt gets sold to a debt collector? The NBA applies to national banks, not other businesses, so you might think a debt collector would be committing usury by trying to collect illegal rates. That would also violate the Fair Debt Collection Practices Act (FDCPA).

The Second Federal Circuit of Appeals found that debt collectors collecting usurious rates was, in fact, illegal in a case called Madden v. Midland Funding, LLC 786 F.3d 246 (2015). Some other circuits, notably the 8th, have tended in the other direction. The Supreme Court denied certiorari (review) of Madden, so it remains in place as law of the 2nd Circuit. Unfortunately, the debt collectors managed to sneak a new regulation through that negates Madden. That regulation is at: 12 C.F.R. part 331, 84 Fed. Reg. 66845.

Do you Have a Usury Defense or Attack?

This leaves us in an odd place. If you are in the 2nd Circuit being sued by a debt collector on a card with interest higher than your state allows, you have a powerful defense. I think it is still good, though you can expect some fighting on the question of retroactivity of the regulation. What about claims arising in the future, though? What about claims outside of the 2nd Circuit?

Courts are supposed to give “great deference” to regulations duly issued by agencies charged with enforcing specific laws. Without going into details, this regulation would seem to fit that bill and should probably receive that deference. It is not unheard of for the courts to reject such a regulation, but it is rare, and, in my opinion, very unlikely in this situation – even in the Second Circuit. Thus I believe that in the future this defense will not be effective. I do believe it could be raised in good faith however, at present, and that may have some advantage for a pro se defendant. It will be a long shot even in the Second Circuit, however, and longer elsewhere.

What about claims existing now but outside the 2nd Circuit? Will the regulation affect the way the 8th Circuit, for example, reads Madden? It probably should not, but it probably will. The regulation is supposedly the FDIC’s reading of an existing statute rather than a new legislative enactment – it will probably be considered an authoritative interpretation of the statute even though, in practical effect it is a new legislative act. But this is not certain, and again, I think the issue may have advantages for pro se litigants to raise, and winning is not out of the question in my opinion.

What if you live in a state with a usury law and a debt collector is trying to collect higher rates – but is not suing you. Can you sue them? I believe the answer is yes – all the foregoing analysis applies to the attempt to collect the debt, not necessarily litigation attempting to collect the debt.

Application to WebBank

Incidentally, the NBA explicitly extends to all FDIC-insured entities. This question came up in a teleconference relating to loans issued by WebBank, which apparently IS FDIC insured. Our consideration of whether WebBank can charge usurious rates, then, must conclude that it can indeed do so.

Public Policy

One might consider that enforcing an explicitly illegal contract (usury) would be void as against public policy under state law. And so it is. However, the federal preemption doctrine that the NBA invokes overrules that – states cannot claim a federal policy is against their public policy. In a very real sense, it is to exploit this facet of the law that the NBA exists in the first place