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On August 13, 2018, the California Supreme Court in Eduardo De La Torre, et al. v. CashCall, Inc., held that interest rates on consumer loans of $2,500 or more could be found unconscionable under section 22302 of the California Financial Code, despite not being subject to certain statutory interest rate caps. By its decision, the Court resolved a question that was certified to it by the Ninth Circuit Court of Appeals. See Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003) (certification procedure is used by the Ninth Circuit when there are questions presenting “significant issues, including those with important public policy ramifications, and that have not yet been resolved by the state courts”).,The California Supreme Court found that although California sets statutory caps on interest rates for consumer loans that are less than $2,500, courts still have a responsibility to “guard against consumer loan provisions with unduly oppressive terms.”  Citing Perdue v. Crocker Nat’l Bank (1985) 38 Cal.3d 913, 926.
However, the Court noted that this responsibility should be exercised with caution, since unsecured loans made to high-risk borrowers often justify their high rates.,Plaintiffs alleged in this class action that defendant CashCall, Inc. (“CashCall”) violated the “unlawful” prong of California’s Unfair Competition Law (“UCL”), when it charged interest rates of 90% or higher to borrowers who took out loans from CashCall of at least $2,500. Bus.

Prof. Code § 17200. Specifically, Plaintiffs alleged that CashCall’s lending practice was unlawful because it violated section 22302 of the Financial Code, which applies the Civil Code’s statutory unconscionability doctrine to consumer loans. By way of background, the UCL’s “unlawful” prong “‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”  Citing Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180 (1999).,The Court agreed, and found that an interest rate is just a term, like any other term in an agreement, that is governed by California’s unconscionability standards.

The unconscionability doctrine is meant to ensure that “in circumstances indicating an absence of meaningful choice, contracts do not specify terms that are ‘overly harsh,’ ‘unduly oppressive,’ or ‘so one-sided as to shock the conscience.”  Citing Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899, 910-911 (2015). Unconscionability requires both “oppression or surprise,” hallmarks of procedural unconscionability, along with the “overly harsh or one-sided results that epitomize substantive unconscionability.”  By enacting Civil Code section 1670.5, California made unconscionability a doctrine that is applicable to all contracts, and courts may refuse enforcement of “any clause of the contract” on the basis that it is unconscionable. The Court also noted that unconscionability is a flexible standard by which courts not only look at the complained-of term, but also the process by which the contracting parties arrived at the agreement and the “larger context surrounding the contract.”  By incorporating Civil Code section 1670.5 into section 22302 of the Financial Code, the unconscionability doctrine was specifically meant to apply to terms in a consumer loan agreement, regardless of the amount of the loan. The Court further reasoned that “guarding against unconscionable contracts has long been within the province of the courts.”,Plaintiffs sought the UCL remedies of restitution and injunctive relief, which are “cumulative” of any other remedies. Bus. Prof.

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Code §§ 17203, 17205. The question posed to the California Supreme Court stemmed from an appeal to the Ninth Circuit of the district court’s ruling granting the defendant’s motion for summary judgment. The California Supreme Court did not resolve the question of whether the loans were actually unconscionable.,Sterling counsels large financial services clients through heavily regulated financial services and consumer finance sectors. He earned his stripes by being a compass for clients coming out of the 2008 financial crisis and while serving as Vice President, Counsel, and Chief Compliance Officer to Advance American Cash Advance Centers, Inc., the largest provider of non-bank cash advance services in the United States.,Sterling’s previous in-house experience is valuable to clients and as a Partner in Womble Bond Dickinson’s Business Litigation Practice Group and as a member of Financial Services Litigation Team and Consumer Finance Litigation Team.

He represents public and private companies and financial institutions on class actions and dispute resolution alternatives such as loan modifications, forbearance agreements, and other loan workouts.
Sterling also counsels financial industry clients regarding regulatory compliance, consumer credit issues, commercial real estate transactions and disputes, complex business litigation, and general corporate matters.,As a member of the Financial Services Litigation Team, Sterling represents domestic banks and servicers in commercial loan workout and foreclosure work as well as consumer finance litigation.,January 31, 2019 CSALs Are Coming, But Not In The Mail by: Erin D. Schilling The Synaptic Health Alliance: A Look at How Blockchain Technology... by: Samuel T. Gilkeson and John M. Tilton Public Knowledge Petitions FCC to Reverse Decision Classifying Text... by: Puja Amin Mississippi Gaming Commission Special Meeting: January 30, 2019 by: Gulf States Gaming Law at Jones Walker Super Bowl Sunday Considerations Following the Murphy Decision? by: Gregg E. Clifton and Thomas L. Petriccione Top 10 2018 TCPA News Stories Video Countdown by: G. David Carter and Artin Betpera Continuing Resolution to Re-open the Government Includes PRIA... by: James V. Aidala Older, Wiser, and Out of Luck: Seventh Circuit Decision Limits Job... by: Laura Lawless Robertson Impact of Government Shutdown on IRS Collections by: Angelique M.,Sterling counsels large financial services clients through heavily regulated financial services and consumer finance sectors. He earned his stripes by being a compass for clients coming out of the 2008 financial crisis and while serving as Vice President, Counsel, and Chief Compliance Officer to Advance American Cash Advance Centers, Inc., the largest provider of non-bank cash advance services in the United States. Sterling’s previous in-house experience is valuable to clients and as a Partner in Womble Bond Dickinson’s Business Litigation Practice Group and as a member of Financial Services Litigation Team and Consumer Finance Litigation Team.

He represents public and private companies and financial institutions on class actions and dispute resolution alternatives such as loan modifications, forbearance agreements, and other loan workouts. Sterling also counsels financial industry clients regarding regulatory compliance, consumer credit issues, commercial real estate transactions and disputes, complex business litigation, and general corporate matters.
As a member of the Financial Services Litigation Team, Sterling represents domestic banks and servicers in commercial loan workout and foreclosure work as well as consumer finance litigation. Sterling serves as the leader of the Firm’s South Carolina Consumer Financial Services Team, as a member of the Firm’s Diversity Committee and the Firm’s Budgeting Committee.

He is listed in the “Legal Elite of the Upstate” and Best Lawyers for Consumer Law.

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