53537 I3 by yangxichun



2,”   ,”
                                                                    53537 I3
                              IN THE UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLORADO

             Civil Action No. 01-D-1576

             STATE OF COLORADO ex rel. KEN
             STATE OF COLORADO, and LAURA E.


             V .



                                  PLAINTIFFS' MOTION TO REMAND

                   Plaintiffs,   State of Colorado ex rel. Ken Salazar, Attorney

             General for the State of Colorado, and Laura E. Udis,

             Administrator,   Uniform Consumer Credit Code (collectively the

             AG) , hereby move this Court, pursuant to 28 U.S.C. § 1447(c), to

             remand this case to Courtroom 3, District Court, City and County

             of Denver, Colorado (State court).     In support, the AG states:


                   1.   By its Notice of Removal, dated August 10, 2001

              (Notice), defendant, ACE Cash Express, Inc. (ACE), invokes this

             Court's federal question jurisdiction under 28 U.S.C. § 1331,

             claiming "plaintiffs' claims are completely preempted by Section

             85 of the National Bank Act, 12 U.S.C. § 85" (Notice, ¶3).
     2.   ACE's removal touches upon the so-called "charter

renting" or "rent-a-bank" issue:       whether a non-bank lender, by

making "payday" loans through a national bank, may cloak itself

with the powers of federal preemption available to banks via the

National Bank Act, 12 U.S.C. §§ 21, et seq. (NBA), and thereby
                                    -     -

evade state consumer protection 1aw.l      This, ACE may not do.


     3.   This action, commenced on July 13, 2001, involves ACE's

alleged violations of Colorado's Uniform Consumer Credit Code,

§§ 5-l-101, et seq., C.R.S. 2000 (Code), and Consumer Protection
            -     -

Act, §§ 6-l-101, et seq., C.R.S. 2000 (CPA) (Complaint, ml).'

Aspects of the Complaint involve the Code's Deferred Deposit

Loan Act, §§ 5-3.1-101, - seq. (DDLA).3

'See, e.g., Scott A. Schaaf, From Checks to Cash:    The
Regulatmof the Pa yda Lending Industry, 5 N.C. Banking Inst.
339, 357, 364-366 (2001); Paul Beckett, Risky Business:
Exploiting a Loophole, Banks Skirt State Laws on High Interest
Rates, Wall St. J., May 25, 2001, at Al.
' A copy of the Complaint, dated July 13, 2001 (Complaint), is
attached as #l to ACE's Notice of Filing of State Court Records,
dated August 10, 2001 (Records).
3 The DDLA governs what are commonly called "payday" or "deferred
deposit" loans.   In particular, the DDLA defines "lender" as

           any person . . . who arranges a deferred
           deposit loan for a third party, or who acts
           as agent for a third party . . . .

Code § 5-3.1-102(5)(a).   The DDLA is a \\loan arranger" statute.
It regulates not just the "actual" lender, i.e., the entity that
funds or "makes" the loan, but also the entity that acts as
agent or arranges the loan for or on behalf of this
"traditional" lender.   The DDLA defines the agent or arranger as

     4.   The AG alleges ACE makes, offers, or acts as

arranger/agent of, "payday" loans (Complaint, ¶5) in violation

of the Code, DDLA, and CPA.     These violations fall into three

main categories:     (1) acting without a statutorily required

license (Complaint, ¶¶13-30);    (2) renewing loans multiple times

in violation of the DDLA's one renewal limitation (Complaint,

¶¶31-44); and (3) engaging in unfair or deceptive practices in

violation of the DDLA or otherwise violating the Code or CPA

(Complaint, ¶¶45-51).

     5.   On July 31, 2001, the AG filed a Motion for Preliminary

Injunction and Request for Forthwith Disposition and Hearing,

dated July 31, 2001 (PI Motion)(Records #4), to enjoin ACE from

its unlicensed lending activity.4      With the agreement of ACE's

then counsel, the AG set an August 29, 2001, State court hearing

on the motion.     See Notice of Hearing, dated August 9, 2001.5

     6.   On August 10, 2001, ACE filed its Notice and removed

the action to this Court.     Although ACE contends a third party,

Goleta National Bank (Goleta), "makes" the loans, it admits it

is Goleta's agent and (1) "originates", (2) promotes and

the "lender" for all purposes thereunder.    Included in these
aspects of the Complaint is the notion that all such
agent/arranger lenders and their loans must comply fully with
the DDLA as though the agent/arranger "made" the loans.
4 ACE has not responded to the PI Motion.   Under state law,' its
response was due August 20, 2001.   See C.R.C.P. 121 § l-15(1).
5 A copy of this pleading is attached as App. 1; ACE did not
include it with its Records or otherwise advise this Court of


        services,   and (3) buys at least a 90% "participation" interest

        in, the loans (Notice, ¶¶6,7).     Significantly, ACE does not deny

        that it is at least a "loan arranger/agent" under the DDLA.

             7.     Instead, the gravamen of ACE's Notice is that the NBA

    preempts the DDLA's one renewal limitation.         It argues (1) this

        limitation is an \\interest rate limitation";    (2) because Goleta

        is a national bank, under NBA 5 85 Goleta may charge interest

        rates "notwithstanding more restrictive Colorado usury laws that

        might otherwise apply";    (3) NBA § 85 completely preempts the

        renewal limitation;    (4) "complete preemption" is an exception to

        the "well-pleaded complaint rule";     (5) the claims involving

        multiple renewals arise under federal law; and (6) this provides

        federal question removal jurisdiction (Notice, ¶¶3,10-19).        ACE

        does not contend the AG's other claims, including licensure,

        involve federal questions; instead, it invokes the Court's

        discretionary supplemental jurisdiction (Notice, ¶20).

             8.     With this background, we show:   (1) collateral estoppel

        precludes ACE from relitigating here the identical removal issue

        another federal district court rejected;     (2) in any event, (a)

        because ACE is not a national bank, the NBA is inapplicable, nor

        (b) is it "completely preemptive", and federal question

        jurisdiction is lacking.     Accordingly, this Court should remand

        this case to the State court.

        this hearing, see D.C.Colo.LR 81.2.



     9.    ACE asserts removal claiming the NBA "completely

preempts" the AG's claims (Notice, ¶3).    In Long v. ACE Cash

Express, Inc., No. 3:00-CV-1306-J-25TJC   (M.D. Fl. June 15,

2001)(order granting remand), the court rejected this precise

contention; ACE is barred from re-raising it here.6

     10.    The doctrine of collateral estoppel, or issue

preclusion, bars relitigation of an issue litigated and decided

in a prior proceeding.    Murdock v. Ute Indian Tribe, 975 F.2d

683, 686 (lOth Cir. 1992); Coffey v. Dean Witter Reynolds, Inc.,

961 F.2d 922, 925 (lOth Cir. 1992).   As with res judicata, the

doctrine is intended to reduce, and thereby relieve parties of

the costs and vexation of, unnecessary litigation, conserve

judicial resources, foster reliance on adjudication, and prevent

inconsistent decisions.    Satsky v. Paramount Communications,

Inc., 7 F.3d 1464, 1467 (lOth Cir. 1993); Cortese v. Black, 838

F.Supp. 485, 492 (D. Colo. 1993).

     11.    The doctrine applies to remand orders.   See Frith v.

Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir. 1975)

(collateral estoppel precluded second court from reviewing

6 A copy of this order is attached as App. 2.   Because Long
involves common questions of law or fact, at least with respect
to the removal issue, it is a related case of which ACE was
required to notify this Court.   See D.C.Colo.LR 7.1(K).


    jurisdictional issue decided in prior remand order); Napper v.

    Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634,

    636-637 (5th Cir- 1974)(party precluded from relitigating issue

    determined in remand order); see generally 18 Wright, Miller &

    Cooper Federal Practice and Procedure 5 4433 at 321 (1981); 18

    Moore's Federal Practice § 132.03[4][k][iv] (3d ed. 2001).

          12.   Collateral estoppel requires four elements:     (1) the

    issue on which preclusion is sought is identical to the issue in

    the prior action;   (2) the prior action has been finally

    adjudicated;' (3) the party against whom the doctrine is invoked

    was, or was in privity with, a party to the prior adjudication;

    and (4) that party had a full and fair opportunity to litigate

    the issue. E.g., Murdock, supra, 975 F.2d at 687.

    A.   The Prior Adjudication

          13.   In November 2000, a Florida resident commenced a class

    action against ACE in Florida state court, captioned Long v. ACE

    Cash Express, Inc., Case No. OO-837CA.    Plaintiff alleged ACE

    7 The concept of "finality" is not the "finality" required for
    appeal.   "Finality" has a relaxed meaning and includes many
    dispositions that, though not final in the "appealability"
    sense, have nevertheless been fully litigated.   Metromedia Co.
    V . Fugazy, 983 F.2d 350, 366 (2d Cir. 1992).  Thus, "finality"
    "may mean little more than that litigation of a particular issue
    has reached such a stage that a court sees no really good reason
    for permitting it to be litigated again".   Lummus co. v.
    Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961);
    accord, Siemens Med. Sys., Inc. v. Nuclear Cardiology Sys.,
    Inc., 945 F.Supp. 1421, 1434 (D. Colo. 1996); see generally 18
    Wright & Miller § 4434; 18 Moore's § 132.03[5][b][i].

made "payday" loans in violation of Florida state usury and

deceptive and unfair trade practices laws; in particular, she

claimed ACE's relationship with Goleta was a sham, designed so

that ACE could evade these consumer protection laws.*

     14.   ACE removed the action to federal court.g    As here, (1)

ACE invoked federal question jurisdiction, (2) contended

plaintiff's claims were "completely preempted by the [NBA]", and

(3) argued that, since Goleta "made" the loans, NBA §§ 85 and 86

provided plaintiff's exclusive federal usury remedies and left

no room for "varying state penalties" (App. 4, ¶4).

     15.   Plaintiff moved to remand and ACE duly resp0nded.l'

The issues argued included whether NBA §§ 85 and 86 provided

\\complete preemption" and their applicability to ACE, a non-

bank, (App. 6, at 8-12; App. 7, at 3-6).

     16.   The court remanded the case, holding:

           The question presented by [ACE's] removal of
           this action is whether the National Bank Act
           preempts any state law claims Plaintiff has
           against [ACE].  The National Bank Act,
           however, does not apply to [ACE] because [ACE]
           is not a national bank.   Thus, the National
           Bank Act cannot preempt Plaintiff's state law
           claims against [ACE].   Therefore, the Court
           has no subject matter jurisdiction.

8 A copy of the Long complaint is attached as App. 3.
' A copy of ACE's notice of removal is attached as App. 4.
lo Copies of plaintiff's motion to remand, accompanying
memorandum of law, and ACE's opposing memorandum of law are
attached as App. 5, 6, and 7, respectively.

        22.   Regardless of Long's preclusive effect, (1) because

ACE is not a national bank, the NBA is inapplicable, and (2) it

does not "completely preempt" the AG's state law claims.

A.   General Legal Principles

        23.   Removal statutes are strictly construed and all doubts

are resolved against removal.        The "well-pleaded complaint" rule

requires the federal right or immunity to be an essential

element of plaintiff's claim and the federal controversy must

appear on the face of the properly pleaded complaint, unaided by

defendant's answer or notice of removal.        Cisneros v. ABC Rail

Corp., 217 F.3d 1299, 1302 (lOth Cir. 2000); Fajen v. Found.

Reserve Ins. Co., 683 F.2d 331, 333 (lOth Cir. 1982); Envtl.

Remediation Holding Corp. v. Talisman Capital Opportunity Fund,

L.P.,    106 F.Supp.2d 1088, 1092 (D. Colo. 2000).     The removing

party bears the burden of establishing the propriety of removal.

Talisman, supra, 106 F.Supp.2d at 1089, 1092.

        24.   The "well-pleaded   complaint" rule makes plaintiff the

"master" of its action; it may prevent removal by not pleading a

federal claim even if available and is free to decide upon what

law it relies.      Cisneros, supra, 217 F.3d at 1302; Talisman, 106

F.Supp.2d at 1092.

        25.   The "artfully pled" complaint is an exception to the

"well-pled" complaint rule.       Under this exception' a plaintiff
_   .

            may not defeat removal by failing to plead federal questions

            that are essential elements of the plaintiff's claim.        Schmeling

            v. NORDAM, 97 F.3d 1336, 1339 (lOth Cir. 1996); Talisman' at

            1093.     However, to invoke this exception the defendant must show

            that the failure to plead a federal claim was not in good faith,

            and all doubts are resolved in plaintiff's favor. Id.

                    26.   The "complete preemption" doctrine is a corollary to

            the "artfully pled" exception.      It provides that a complaint

            alleging only state law causes of action may be removed on the

            theory that federal preemption makes the state law claim

            necessarily federal in character.        Schmeling, supra, 97 F.3d at

            1339; Talisman' at 1093.      "Complete preemption" is distinct from

            "ordinary preemption"; the former arises only when the pre-

            emptive force of a statute is so extraordinary that it converts

            a state law claim into a federal one.        Copeland v. MBNA America,

            N.A.,    820 F.Supp. 537, 539 (D. Colo. 1993); see Schmeling, at

            1338-1342.      Ordinary preemption exists when federal law provides

            a defense to a state law claim and will not support removal.

            Schmeling,     at 1338-1339; Copeland, supra, 820 F.Supp. at 539.

            "Complete preemption" is not to be applied freely, Copeland, at

            539; absent clear Congressional intent to create removal

            jurisdiction, prudence compels remand, Schmeling, at 1342;


_   I

            Talisman' at 1093.11

                  27.     Here, the AG sued ACE only, not Goleta; the "well-

            pled" claims clearly arise solely under state law.      Nor can ACE

            establish the NBA "completely preempts", in the sense of making

            (1)   it an "essential element" of, and (2) "necessarily federal"

            in character, the AG's claims.

            B.  The NBA Does Not Apply to ACE,
            a Non-National Bank

                  28.     The purpose of the NBA, enacted in 1864, is to place

            national banking associations on the same footing as state

            banks.       Tiffany v. Nat'1 Bank, 85 U.S. 409, 412 (1873). It

            allows national banks to charge the same interest rates that

            state law allows to its citizens and banks organized by it.
            Daggs v. Phoenix Nat'1 Bank, 177 U.S. 549, 555 (1900); -
                                                                   see also

            Walker Bank & Trust Co. v. Saxon, 352 F.2d 90, 94 (lOth Cir.

            1965)(purpose of allowing national banks to branch was to enable

            them to compete fairly with state banks), aff'd sub nom. First
                                                            -      -

            Nat'1 Bank v. Walker Bank & Trust Co., 385 U.S. 252 (1966).

                   29.    Courts consistently hold that the NBA applies only to

            national banks and not to other entities. E.g., Long, supra,

            slip op. at 2 (ACE, a non-bank' not covered by NBA); Green v. H

            & R Block, Inc., 981 F.Supp.     951, 955 (D. Md. 1997)(NBA did not

            l1 Copeland, at 539, observes the Supreme Court found complete
            preemption in only three settings, none involving the NBA; see
            also Schmeling, 97 F.2d at 1339-1341; Talisman' 106 F.Supp. at

I   .

        apply to non-banks affiliated with national banks in making

        loans); Wiley v. Fed. Land Bank, 657 F.Supp. 964, 965 (S.D. Ind.

        1987)(NBA regulates conduct only of national banks; it does not

        apply to federal land banks); Criswell v. Prod. Credit Ass'n,

        660 F.Supp.   14, 16 (S.D. Ohio 1985)("well settled" that NBA

        regulates conduct only of national banks); Weiner v. Bank of

        King of Prussia, 358 F.Supp. 684, 687 (E.D. Pa. 1973)(NBA

        regulates only national banks); First Fed. Sav. & Loan Ass'n v.
        Haley, 377 So.2d 1082, 1084 (Ala. Civ. App. 1979) (NBA's venue

        provision did not apply to savings and loan); Simmons v. Cent.

        Charge Serv., Inc., 269 A.2d 850, 851 n.1 (D.C. App. 1970)(NBA

        55 85 and 86 do not apply to non-bank).12

             30.   Here, ACE is not a national bank.       Because the NBA

        thus does not apply, ACE's reliance upon it is misplaced.

             31.   Dispositive are Long and Green v. H & R Block, supra.

        In Long, the court held the NBA did not apply to ACE, could not

        preempt plaintiff's claims, and, lacking federal question

        jurisdiction' remanded the case.        Long, slip op. at 2-3.

             32.   Similarly,   Green involved the remand of an action

        against a non-bank despite its contention the NBA provided

        complete preemption.     The defendant Block, a tax preparer,

        1093-1094 (recognizing "complete preemption" rarely is found).
        l2 Krispin v. May Dep't Stores Co., 218 F.3d 919, 924 (8th Cir.
        2000)' upon which ACE relies (Notice, ¶17), also recognizes "the
        NBA governs only national banks".

operated a program of providing tax refund anticipation loans

(RALs) to its taxpayer customers.      Although the RALs were funded

by national banks, Block arranged the loans on behalf of the

banks and received fees for each loan made.        Plaintiff's state

court suit alleged violations of state consumer protection laws

and other claims.   Green,   981 F.Supp. at 952.    Block removed,

inter alia claiming federal question jurisdiction because the

NBA completely preempted plaintiff's claims. Id., at 952, 955.

     33.   The court disagreed.    Terming Block's arguments

unpersuasive and "intricate' if not tortuous", it held that

because Block was not a bank, plaintiff's claims did not fall

"within the purview of the NBA", id., at 955.       Noting that other

courts "consistently and unfailingly" rejected Block's remova

tactics, id., at 952-953, 955, n-3, the court concluded:

           There is no support for the proposition that
           an entity that acts in concert with, or is
           in privity with, a national bank is entitled
           to remove state claims to federal court
           under the NBA.

Id., at 955.   The same result portends here.

C.  The NBA Does Not "Completely
Preempt" The AG's Claims

     34.   Even if ACE could invoke the NBA, the law in this

district is clear - NBA 5 85 does not "completely preempt" state

law so as to provide a basis for removal jurisdiction.13

l3 ACE cites a string of cases, none from the Tenth Circu t, to

     35.   So holding is Copeland, supra.      There, plaintiff sued

a national bank in state court alleging the bank's imposition of

a late charge for delinquent credit card payments violated the

Code and CPA. Id., at 538, n.1.        The bank removed, inter alia

invoking federal question jurisdiction because "'adjudication of

this action requires the construction and application of"' NBA

§§ 85 and 86. Id., at 539.     The court remanded, holding the

"well-pleaded" complaint rule precluded removal since the NBA

would arise, if at all, "only as a defense":

           the presence of a defense based on federal law
           will not support jurisdiction, "even if both
           parties concede that the federal defense is
           the only question truly at issue."

Id., at 539 (citation omitted).    Similarly,    it rejected the

claim the NBA manifests a Congressional intent so clear as to

           assign a preemptive force so extraordinary
           to §§ 86 and 86 as to convert state law
           challenges to late fees into claims arising
           under federal jurisdiction.

Id., at 541.   Thus, preemption of interest rates by NBA §§ 85

and 86 would be at most only

           a defense to state regulation of interest
           rates, not complete preemption as a basis
           for federal jurisdiction over claims
           relating to late fees.

Id., at 540 (emphasis supplied); accord, e.g., Jones v.

Bankboston, N.A.,   115 F.Supp.2d 1350, 1355 (S-D. Ala. 2000);

support its "complete preemption" argument (Notice, ¶17).

Partin v. Cableview, Inc., 948 F.Supp. 1046, 1049-1050 (S.D.

Ala.    1996)(each criticizing M. Nahas & Co. v. First Nat'1 Bank,

930 F.2d 608 (8th Cir. 1991)' and other ACE cases, Notice, ¶17).

        36.   Thus, and even assuming the DDLA's renewal limitation

is an -interest rate limitation", if removal is improper under

the NBA in a case against a national bank involving interest

rates,    then + fortiori it is improper in this case against ACE,

a non-bank.      Here, too, the NBA is not an "essential element"

Off    and does not make "necessarily federal" in character, the

AG's state law claims.14


        37.   28 U.S.C. § 1447(c) in pertinent part provides:

              An order remanding the case may require
              payment of just costs and any actual
              expenses' including attorney fees, incurred
              as a result of the removal.

In deciding whether to grant an award under 5 1447(c), the key

factor is the "propriety", or legitimacy' of the removal; bad

faith is not a prerequisite nor is a "colorable" basis for

removal a defense.      Suder v. Blue Circle, Inc., 116 F.3d 1351,

1352, 1353 (lOth Cir. 1997); Excell, Inc. v. Sterling Boiler &

Mech., Inc., 106 F.3d 318, 322 (lOth Cir. 1997); Wallic v. Owens-

Corning Fiberglass Corp., 40 F.Supp.2d 1185, 1189-1190 (D. Colo.

I4 If ACE's removal is proper, then the AG requests the Court
decline supplemental jurisdiction over those claims not
involving multiple renewals' such as licensure, see supra, ¶7.

1999).     Other factors include the defendant's (1) refusal

voluntarily to remand the case, Excell,    106 F.3d at 322, and (2)

rebuked prior removal attempts' Suder, 116 F.3d at 1353 n.3; see

Green,   981 F.Supp. at 955 n.3.

     38.     Here, those factors are present:   (1) Long, Green, and

Copeland demonstrate the impropriety of removal; (2) ACE knew,

or should have known, of these cases and that removal was

improper;15 (3) as demonstrated infra, ¶39, ACE refused the

opportunity vo luntarily to remand this case; (4) Long rejected a

prior ACE removal attempt; and (5) ACE removed before an already

agreed-upon State court hearing on the PI Motion, see ¶5, supra;       '

cf. Wallic,    40 F.Supp.2d at 1187, 1190 (removal during trial).16


     39.     On August 23, 2001, undersigned counsel telephoned

ACE's counsel and (1) stated the AG intended to seek remand,

                                                       - see
l5 Here, (1) the AG apprised ACE's current counsel of Long, .-
infra, ¶39, (2) plaintiff in Long cited Green, see App. 6 at 12,
which also is cited in Krispin, 218 F.3d at 924, a case ACE
cites (Notice, ¶17), (3) Copeland is cited in Hunter v. Rich's
Dep't Stores, 945 F.Supp. 1500, 1504 (N.D. Ala. 1995)' and
Watson v. First Union Nat'1 Bank, 837 F.Supp. 146, 149 (D.S.C.
1993)' both cases ACE cites, see Notice, ¶17, and (4) Copeland,
at 539, cites two of ACE's other cases, Hill v. Chemical Bank,
799 F.Supp. 948 (D. Minn. 1992)' and Nelson v. Citibank' 794
F.Supp. 312 (D. Minn. 1992)' see Notice, ¶17.
l6 ACE's proceeding in the face of Long's preclusive effect also
implicates Fed. R. Civ. P. 11.   See, e.g. f West Coast Theater
Corp. v. City of Portland, 897 F.2d 1519, 1527 (gth Cir. 1990)
 (Rule 11 sanctions appropriate where party raised previously
litigated issues); 18 Wright & Miller § 4405 at 35 (Supp. 2001).

including costs and fees,                 (2) specifically told ACE's counsel of

Long,       and (3) offered ACE the opportunity voluntarily to

withdraw its Notice and remand this action to the State court.

ACE's counsel rejected the offer the next day.

        40.    Beginning August 29, 2001, ACE asked that the AG delay

seeking remand but, absent a compelling reason, the AG declined.

        WHEREFORE, plaintiffs request that (i) this motion be

granted in all respects,                (ii) this action be remanded to the

State court'        and (iii) they be awarded their just costs and

expenses,       including attorney's fees, together with all such

further relief as the Court deems just.

Dated:         Denver, Colorado
               August 31, 2001

                                             KEN SALAZAR
                                             Attorney General

                                             PAUL CHESSIN, 12695*
                                             Assistant Attorney General
                                             Consumer Credit Unit
                                             Consumer Protection Section
                                             Attorneys for Plaintiffs
                                             1525 Sherman Street, 5th Floor
                                             Denver, Colorado 80203
                                             Telephone:   (303) 866-4494
                                             *Counsel of Record



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