District of Columbia v. Elevate Credit, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DISTRICT OF COLUMBIA

Plaintiff,
Civ. Action No. 20-1809 (EGS)
v.

ELEVATE CREDIT, INC.

Defendant.

MEMORANDUM OPINION

The District of Columbia (“Plaintiff” or “the District”)

filed this consumer protection enforcement action against

Elevate Credit, Inc. (“Defendant” or “Elevate”) in the Superior

Court of the District of Columbia (“Superior Court”) for alleged

violations of the District of Columbia Consumer Protection Act

(“CPPA”), D.C. Code §§ 28-3901 et seq. The District alleges that

Elevate, an unlicensed online money lender, operates what is

commonly referred to as a “rent-a-bank” scheme whereby a lender

markets and sells high-interest loans to consumers in one state,

where interest rate caps are low, using a partnership with a

bank chartered in a different state, where interest rate caps

are much higher, in an attempt to skirt the lower interest rate

caps in the state where the loans are being made. This suit

seeks to prevent Elevate from using this alleged rent-a-bank

arrangement as an end run around the District’s consumer

protection laws. The District alleges that Elevate is the “true
lender” of loans it markets and sells to District residents that

contain interest rates of up to 149% for one of its products and

251% for another of its products—well in excess of the 24% and

6% caps in the District’s usury statutes—and that Elevate

misrepresents material characteristics of these loans when

marketing them to consumers, all in violation of the CPPA. See

generally Compl., ECF No. 1-2.

Elevate removed the case to this Court, asserting that

jurisdiction exists here pursuant to 28 U.S.C. §§ 1331 and 1441

because the District’s claims: (1) are completely preempted by

federal banking law; and (2) they implicate significant federal

issues and invoke serious federal interests. Notice of Removal,

ECF No. 1 at 12. 1 Pending before the Court is the District’s

Motion to Remand to the Superior Court for lack of subject

matter jurisdiction. See Pl.’s Mot. Remand (“Pl.’s Mot.”), ECF

No. 15. Upon careful consideration of the motion, opposition,

and reply thereto, the notice of supplemental authority and the

response thereto, the applicable law, and the entire record

herein, Plaintiff’s Motion to Remand is GRANTED.

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
I. Background

1. Factual Background

The following facts—drawn from the Complaint and documents

incorporated by reference therein—are assumed to be true. See

Colon v. Ashby, 314 F. Supp. 3d 116, 120 (D.D.C. 2018) (quoting

Walter E. Campbell Co. v. Hartford Fin. Servs. Grp., Inc., 48 F.

Supp. 3d 53, 55 (D.D.C. 2014) (“When assessing a remand motion,

. . . the court ‘must assume all of the facts set forth by

plaintiff to be true and resolve all uncertainties as to state

substantive law in favor of the plaintiff.’”).

Elevate, a Delaware corporation, is an “online lender that

operates through several websites . . . to provide predatory,

high-interest, short-term loans to consumers that it describes

as individuals ‘with little to no savings, urgent credit needs

and limited options.’” Compl., ECF No. 1-2 ¶¶ 1, 10. Elevate

describes its business model in its 2019 annual report filed

with the Securities and Exchange Commission (“2019 10-K”) as

“provid[ing] convenient, competitively priced financial

solutions to our customers, who are not well-served by either

banks or legacy non-prime lenders, by using our advanced

technology platform and proprietary risk analytics.” Id. ¶ 4.

Elevate has “offered, provided, serviced, and advertised loans

to District residents in conjunction with FinWise Bank

(‘FinWise’), a Utah-chartered bank, for its Rise brand, and

3
Republic Bank & Trust Company (‘Republic’), a Kentucky-chartered

bank, for its Elastic brand.” Id. ¶ 10. Elevate’s Rise brand is

an installment loan that offers “fast approval for loans between

$500 and $5,000,” id. ¶ 24; and its Elastic brand is “a line of

credit in amounts between $500 and $4,500,” id. ¶ 49. Elevate

has provided at least 871 Rise loans and 1,680 Elastic loans to

District consumers. Id. ¶ 15. The District alleges Elevate

deceptively markets these loans and charges illegal interest

rates—between 99% and 149% on its Rise loans and between 129%

and 251% on its Elastic loans, “well in excess of the District’s

usury caps.” Id. ¶¶ 23, 48.

According to the District, Elevate is the true lender of

the Rise and Elastic loans. Id. ¶¶ 36-47, 68-79. The District

alleges that Elevate provides the marketing for the Rise and

Elastic products “through direct mail, E-mails, and via banner

ads on the Internet that were either accessible to or directed

at District residents.” Id. ¶¶ 17, 18. Elevate “prepares product

offerings and associated marketing materials; develops and

places internet, print media, radio and television advertising;

designs and develops websites; and delivers all notices and

disclosures to consumers.” Id. ¶¶ 25, 52. Elevate is solely

responsible for “all costs and expenses associated with

advertising and developing promotional materials” for Rise and

Elastic loans. Id. ¶¶ 26, 53.

4
 The District also alleges that Elevate “has the predominant

economic interest in the loans it provides to District consumers

via FinWise and Republic.” Id. ¶ 22. For the Rise loans, the

District contends Elevate funds the loans, reaps the profits of

good loans, takes on the risk of bad loans, and acts as the

servicer of the loans. Id. ¶ 36. The District contends Elevate

“in essence rents FinWise to provide the loan,” but “it is

Elevate that directs and controls the funding of the loan.” Id.

¶ 37. Elevate “funds Rise loans through its captive credit

financing relationship with Victory Park Management, LLC

(‘VPC’),” which provides debt financing for Elevate, without

which Elevate would “have to secure other sources of debt

financing or potentially reduce loan originations.” Id. ¶ 38.

Elevate also “reaps most of the profits” from the Rise brand

loans. Id. ¶ 39. In 2019, Elevate’s revenue from the Rise brand

loans totaled approximately $390,354,000. Id. ¶ 40. Elevate EE

SPV (“EE SPV”)—"a Cayman Islands special purpose vehicle that

operates for the financial benefit of Elevate”—has allegedly

purchased a 96% interest in the receivables for the Rise loans,

including the principal and interest due on the loans. Id. ¶ 41.

The District contends that EE SPV is thus the “legal and

equitable owner of the receivables from the loans,” and these

receivables generate income for Elevate, “the primary

beneficiary of EE SPV.” Id. Indeed, Elevate’s financial

5
statements include “revenue, losses and loans receivable related

to the 96% of Rise installment loans originated by FinWise Bank

and sold to EE SPV.” Id. ¶ 42. Elevate also “takes the risk of

bad loans.” Id. ¶ 44. Specifically, “Elevate provides credit

protections to EE SPV against Rise loan losses,” which “places

the risk of losses on Elevate.” Id. ¶ 45. Furthermore,

“FinWise’s interests are protected in its agreement with EE SPV

by a requirement that EE SPV maintain cash collateral in a

FinWise account in specified amounts to secure its obligations

to purchase the loans.” Id. ¶ 46.

Similarly, for the Elastic brand loans, the District

alleges Elevate reaps the profits of good loans and takes the

risk of bad loans. Id. ¶ 68. Again, the District contends

“Elevate, in essence[,] rents Republic to originate the loans

that it ultimately controls and profits from through Elevate SPV

(‘ESPV’).” Id. ¶ 69. According to the District, Elevate’s 2019

10-K explains that Elevate needs a bank (i.e., Republic) to

provide access to the Automated Clearing House (“ACH”) system to

deposit the loans into consumers’ accounts and to withdraw the

repayments, and “if these banks cease to provide ACH processing

services or are not allowed to do so, [Elevate] would have to

materially alter, or possibly discontinue, some or all of [its]

business if alternative ACH processors or other payment

mechanisms are not available.” Id. ¶¶ 70-71. Elevate also

6
profits from the Elastic loans, having brought in approximately

$248,518,000 in revenue in 2019 from those loans. Id. ¶ 72.

ESPV—another Cayman Islands special purpose vehicle “that

operates for the financial benefit of Elevate”—has allegedly

purchased a 90% interest in the receivables for the Elastic

brand loans, including the principal and interest due on the

loans. Id. ¶ 73. ESPV is therefore, according to the District,

the legal and equitable owner of the receivables of the loans,

and those receivables generate income for Elevate. Id. As was

true with respect to the Rise loans, Elevate’s financial

statements include “revenue, losses and loans receivable related

to the 90% of Elastic loans originated by Republic and sold to

ESPV.” Id. ¶ 75. Elevate also “takes the risk of bad Elastic

loans.” Id. ¶ 76. “Elevate provides credit protection to ESPV

against Elastic loan losses,” meaning “Elevate holds the risk

for loan losses.” Id. ¶ 77. “Republic’s interests are protected

in its agreement with ESPV by a requirement that ESPV maintain

cash collateral in a Republic account in specified amounts to

secure its obligations to purchase the loans.” Id. ¶ 78.

The District also alleges that Elevate, “through one of its

subsidiaries, also acts as the servicer for” the Rise and

Elastic loans, which includes reconciling the accounts, posting

payments and other credits to the accounts, and providing

periodic billing statements. Id. ¶¶ 47, 79. In addition, Elevate

7
has “either registered trademarks or has pending applications in

the United States for the marks Rise and Elastic” and “holds the

intellectual property rights to its proprietary analytics,

predictive underwriting models, and software systems,” and it

“provides the analytics, software, and underwriting models to

FinWise and Republic for the provision of the Rise and Elastic

loans.” Id. ¶¶ 20-21.

2. The District’s Claims Under the District of Columbia
Consumer Protection Procedures Act

The District alleges that Elevate violated the CPPA by: (1)

providing high-interest loans to residents of the District with

interest rates that exceed the permissible amount under District

law; (2) not registering as a money lender in the District; and

(3) misrepresenting material characteristics of loans when

marketing them to consumers. See Compl., ECF No. 1-2. As

relevant here, the CPPA: (1) establishes a right to truthful

information from merchants about consumer goods; (2) prohibits

any person from engaging in unfair trade practices; (3)

prohibits any person from violating the District’s usury laws;

and (4) prohibits any person from engaging in the business of

lending money without obtaining a license as a money lender. Id.

at 12-16.

The Complaint contains the following claims against Elevate

for violations of Section 28-3904 of the CPPA: (1)

8
Misrepresentations and Omissions, in violation of D.C. Code §§

28-3904(b), (e), (f), and (f-1); (2) Unfair and Unconscionable

Practices, in violation of D.C. Code §§ 28-3904 and 3904(r); (3)

Violations of the District Usury Laws, in violation of D.C. Code

§§ 28-3904(ff); and (4) Violations of the District of Columbia

Municipal Regulation (“DCMR”), in violation of D.C. Code § 28-

3904(dd). Id. As relevant to Count III, it is a violation of

Chapter 33 of the D.C. Code—the District’s usury laws—for a

licensed money lender to contract for an interest rate above

24%, or for a licensed money lender to charge an interest rate

above 6% if no interest rate is expressed in the contract. See

28-3301(a), 28-3308(a), and 28-3302(a). As relevant to Count IV,

it is a violation of the DCMR to engage in the business of

loaning money in the District without obtaining a license as a

money lender. See 16 DCMR §§ 201.1 and 200.4.

3. Elevate’s Assertions in Support of Removal Under
Section 27 of the Federal Deposit Insurance Act

Elevate asserts that the Complaint “challenges interest

rates lawfully charged by state-chartered banks under a federal

statutory and regulatory scheme administered by the [FDIC].” See

Notice of Removal, ECF No. 1 at 1. Central to the removal

dispute is Elevate’s contention that the state-chartered banks,

FinWise and Republic, are responsible for the Rise and Elastic

loans and interest rates, and Elevate’s only role is as a

9
servicer provider. Id. ¶¶ 15-30. Unlike non-bank entities like

Elevate, state-chartered banks are “regulated under a statutory

structure enacted by Congress and administered by the FDIC.” Id.

¶ 17.

Two federal statutes establish the maximum amounts of

interest that national and state-chartered banks may charge

their customers: (1) Section 85 the National Bank Act (“NBA”),

12 U.S.C. § 85, for national banks; and (2) Section 27 the

Federal Deposit Insurance Act (“FDIA”), 12 U.S.C. §§ 1831d, for

state-chartered banks. 2

The NBA was created during the Civil War era to facilitate

a national banking system, and it “constitutes a complete system

for the establishment and government of national banks.” See 10

Am. Jur. 2d Banks and Financial Institutions § 119. Section 85

of the NBA “authoriz[es] national banks to charge or receive

interest on loans and discounts at the rate allowed by the laws

of the state, territory, or district in which the bank is

located, or at a rate based on the rate in effect at the Federal

Reserve bank in the Federal Reserve district where the national

2 Section 27 was added to the FDIA in 1980 by Section 521 of the
Depository Institutions Deregulation and Monetary Control Act
(“DIDA” or “DIDMCA”), Pub. L. No. 96-221, 94 Stat. 132 (1980).
Some decisions cited in this Memorandum Opinion refer to the
relevant statutory provision as Section 521 of DIDA or DIDMCA,
while others refer to it as Section 27 of the FDIA. The Court
uses “Section 27,” “Section 27 of the FDIA,” or “12 U.S.C. §
1831d” in this Memorandum Opinion.
10
bank is located.” Id. § 983. The Supreme Court has explained

that Section 85 “sets forth the substantive limits on the rates

of interest that national banks may charge,” and “if . . . the

interest that [a] bank charge[s] . . . [does] not violate § 85

limits, the statute unquestionably pre-empts any common-law or

[state] statutory rule that would treat those rates as

usurious.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9

(2003). Section 85 works in parallel with Section 86, which

“sets forth the elements of a usury claim against a national

bank, provides for a 2-year statute of limitations for such a

claim, and prescribes the remedies available to borrowers who

are charged higher rates and the procedures governing such a

claim.” Id.

Before Congress passed Section 27 of the FDIA in 1980,

national banks held a favored lending position vis-à-vis state-

chartered banks because the NBA preempted state law to allow

national banks to charge as much or more interest than the

state-chartered banks against which they competed. See Greenwood

Trust Co. v. Massachusetts, 971 F. 2d 818, 826 (1st Cir. 1992)

(explaining that “state institutions were at an almost

insuperable competitive disadvantage” to national banks during

the credit crunch of the late 1970s when interest rates were

soaring but state institutions were constrained in the interest

they could charge by state usury laws in ways national banks

11
were not). To remedy that disparity, Congress passed Section 27

for the express purpose of “prevent[ing] discrimination against

State-chartered insured depository institutions, including

insured savings bank.” See 12 U.S.C. § 1831d.

Section 27 of the FDIA provides as follows:

In order to prevent discrimination against
State-chartered insured depository
institutions, including insured savings
banks, or insured branches of foreign banks
with respect to interest rates, if the
applicable rate prescribed in this subsection
exceeds the rate such State bank or insured
branch of a foreign bank would be permitted to
charge in the absence of this subsection, such
State bank or such insured branch of a foreign
bank may, notwithstanding any State
constitution or statute which is hereby
preempted for the purposes of this section,
take, receive, reserve, and charge on any loan
or discount made, or upon any note, bill of
exchange, or other evidence of debt, interest
at a rate of not more than 1 per centum in
excess of the discount rate on ninety-day
commercial paper in effect at the Federal
Reserve bank in the Federal Reserve district
where such State bank or such insured branch
of a foreign bank is located or at the rate
allowed by the laws of the State, territory,
or district where the bank is located,
whichever may be greater.

12 U.S.C. § 1831d(a). What Section 27 does is allow state-

chartered banks to charge the maximum interest rates allowed in

their home states or a prescribed federal interest rate, even to

borrowers in states that set lower interest rate caps. And like

Section 86 of the NBA, Section 27 subsection (b) provides for

12
the remedies available against a state-chartered bank charging

excessive interest rates. See 12 U.S.C. §1831d(b).

4. Elevate’s Additional Assertions in Support of Removal

Elevate also asserts that the Complaint “challenges

Elevate’s lawful role as a service provider for state-chartered

banks, a role also regulated by the FDIC.” See Notice of

Removal, ECF No. 1 at 1. Elevate asserts that the FDIC requires

state-chartered banks to “monitor and oversee Elevate in its

role as a service provider.” Id. ¶ 34 (citing 12 U.S.C. §

1802(d)(1); 12 C.F.R. § 337.12(a)). Elevate also contends that

the Bank Service Company Act “allows the state-chartered banks

to engage service providers like Elevate, by contract or

otherwise, to perform bank-related function on behalf of the

bank,” and service providers are “subject to regulation and

examination by the FDIC as if the services were provided by the

bank itself.” Id. ¶ 35 (citing 12 U.S.C. § 1867(c)). Elevate

characterizes the FDIC as “establish[ing] the requirements and

responsibilities concerning the state-charted banks’ risk-

management procedures and due diligence in monitoring their

third party service providers,” and “hold[ing] the state-

chartered banks responsible for their relationships with third

party providers, including service providers like Elevate.” Id.

¶ 36 (citing 12 U.S.C. §§ 1813(q), 1813 (u); 12 U.S.C. §

1867(c)(1)). Elevate further assets that the FDIC has issued

13
guidance that addresses a number of the actions at issue in the

District’s complaint. See id. ¶¶ 38-44.

Accordingly, Elevate removed this case to federal court on

the basis that jurisdiction exists here based on “the preemptive

effect of Section 27 . . . , on the one hand, and the need to

interpret FDIC statutes, regulations, and guidance, on the

other.” Def.’s Opp’n, ECF No. 23 at 2.

II. Legal Standard

A civil action may be removed from state court to a federal

district court only if the federal district court has original

subject-matter jurisdiction over the case. 28 U.S.C. § 1441(a).

The Superior Court is considered a state court for removal

purposes. Id. § 1451(a). “When it appears that a district court

lacks subject matter jurisdiction over a case that has been

removed from a state court, the district court must remand the

case . . . , and the court’s order remanding the case to the

state court whence it came ‘is not reviewable on appeal or

otherwise.’” Republic of Venezuela v. Philip Morrris, Inc., 287

F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c);

quoting id. § 1447(d)). “Because of the significant federalism

concerns involved, this Court strictly construes the scope of

its removal jurisdiction.” Downey v. Ambassador Dev., LLC, 568

F. Supp. 2d 28, 30 (D.D.C. 2008). “The party seeking removal of

14
an action bears the burden of proving that jurisdiction exists

in federal court.” Id.

The subject matter jurisdiction of federal district courts

is limited and is set forth generally at 28 U.S.C. §§ 1331 and

1332. Section 1331 confers jurisdiction on district courts over

all civil actions arising under the Constitution, laws or

treaties of the United States, or where the controversy presents

a “federal question.” 28 U.S.C. § 1331. Absent diversity of

citizenship, federal question jurisdiction is required to

establish that the case could have originally been filed in

federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987). “The presence or absence of federal-question

jurisdiction is governed by the ‘well-pleaded complaint rule,’

which provides that federal jurisdiction exists only when a

federal question is presented on the face of the plaintiff’s

properly pleaded complaint.” Id. “[I]t is now settled law that a

case may not be removed to federal court on the basis of a

federal defense of pre-emption, even if the defense is

anticipated in the plaintiff’s complaint, and even if both

parties concede that the federal defense is the only question

truly at issue.” Id. at 393.

There are two situations in which federal question

jurisdiction may exist even where, as here, a complaint alleges

only state law claims. First, Congress may “so completely pre-

15
empt a particular area that any civil complaint raising [a]

select group of claims is necessarily federal in character.”

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). This

doctrine of “complete preemption” is an “independent corollary”

to the well-pleaded complaint rule that “converts an ordinary

state common-law complaint into one stating a federal claim for

purposes of the well-pleaded complaint rule.” Caterpillar Inc.,

482 U.S. at 392. “Once an area of state law has been completely

preempted, any claim purportedly based on that pre-empted state

law is considered, from its inception, a federal claim, and

therefore arises under federal law.” Id. Second, in a “special

and small category of cases[,] . . . federal jurisdiction over a

state law claim will lie if a federal issue is: (1) necessarily

raised, (2) actually disputed, (3) substantial, and (4) capable

of resolution in federal court without disrupting the federal-

state balance approved by Congress.” Gunn v. Minton, 568 U.S.

251, 258 (2013) (citing Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg., 545 U.S. 308 (2005)).

III. Analysis

Elevate, which bears the burden of showing the Court has

jurisdiction, maintains that removal to federal court is proper

in this case because: (1) Section 27 of the FDIA completely

preempts state law claims involving loans originated by a state-

chartered bank; and (2) the significant federal issues doctrine

16
provides an independent ground for removal because federal law

must be interpreted and considered to determine the validity of

the District’s claims. See Def.’s Opp’n, ECF No. 23 at 6-23.

The Court disagrees, and, for the reasons set forth below,

concludes that this Court does not have jurisdiction to hear

this case. The case shall be remanded to the Superior Court.

A. The FDIA Does Not Completely Preempt the District’s State
Law Claims Against Elevate, a Non-Bank Entity

Complete preemption exists only when a federal statute’s

“pre-emptive force is so ‘extraordinary’ that it ‘converts an

ordinary state common-law complaint into one stating a federal

claim for purposes of the well-pleaded complaint rule.’”

(quoting Metro. Life Ins. Co., 481 U.S. at 65). It is “not . . .

a crude measure of the breadth of the preemption (in the

ordinary sense) . . . but rather . . . a description of the

specific situation in which a federal law . . . substitutes a

federal cause of action for a state cause of action, thereby

manifesting Congress’s intent to permit removal.” Schmeling v.

NORDAM, 97 F.3d 1336, 1339 (10th Cir. 1996).

The Supreme Court has found only three statutes have the

requisite extraordinary preemptive force to support complete

preemption: (1) Section 301 of the Labor Management Relations

Act, 29 U.S.C. § 185, see Avco Corp. v. Machinists, 390 U.S. 557

(1968); (2) the Employee Retirement Income Security Act of 1947,

17
29 U.S.C. § 1001 et seq., see Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987); and, as relevant here, (3) Sections 85 and

86 of the NBA, 12 U.S.C. §§ 85-86, see Beneficial Nat. Bank v.

Anderson, 539 U.S. 1 (2003). In Beneficial, the Supreme Court

held that Sections 85 and 86 of the NBA provide the exclusive

cause of action for usury claims against national banks, and

there is no such thing as a state law claim of usury against a

national bank; thus, the NBA completely preempts such state law

claims. 539 U.S. at 11.

Elevate argues that just as Sections 85 and 86 of the NBA

provide the exclusive cause of action for usury claims against

national banks, Section 27 of the FDIA provides the exclusive

cause of action for usury claims against state-chartered banks.

See Notice of Removal, ECF No. 1 ¶ 60. Section 85 of the NBA and

Section 27 of the FDIA allow national and state-chartered banks,

respectively, to charge interest at rates set by the banks’ home

states, even if those rates are illegal in the states in which

the loans are made. See 12 U.S.C. §§ 85-86; 12 U.S.C. § 1831d.

Elevate reasons that because Section 27 was “enacted to create

parity and fair competition between state-chartered and national

banks” and it “mirror[s] the language of Sections 85 and 86,”

the Supreme Court’s complete preemption analysis in Beneficial

is “equally applicable to claims against federally-insured,

state-chartered banks arising under Section 27.” Def.’s Opp’n,

18
ECF No. 23 at 14-15. Therefore, because the usury claims in the

District’s complaint relate to loans originated by FinWise, a

Utah-chartered bank, and Republic, a Kentucky-chartered bank,

Elevate argues Section 27 provides the exclusive cause of action

for those claims. See id. at 13.

For the reasons set forth below, the Court concludes that

even if Section 27 of the FDIA completely preempts state law

usury claims against state-chartered banks, it does not

completely preempt the District’s claims against Elevate, a non-

bank entity. Accordingly, Section 27 does not provide a basis

for removal of this action to federal court.

1. If Section 27 Completely Preempts State Law Usury
Claims, It Only Applies to Claims Against State-
Chartered Banks

The Supreme Court has not addressed whether Congress

intended Section 27 of the FDIA to completely preempt state law

usury claims against state-chartered banks insured by the FDIC,

as Sections 85 and 86 of the NBA do for state law usury claims

against national banks. To date the Supreme Court has chosen not

to address this issue, see Vaden v. Discover Bank, 556 U.S. 49,

56 n.4 (2009) (citing Beneficial by way of comparison) (“Our

disposition of this case makes it unnecessary to take up the

question of § 27(a)’s preemptive force generally or in the

particular context of Discover’s finance charges. We therefore

express no opinion on those issues.”); and a split currently

19
exists among circuit courts that have addressed the issue,

compare In re Cmty. Bank of N. Va., 418 F.3d 277, 295 (3d Cir.

2005) (holding complete preemption exists with respect to

Section 27, and state law usury claims against state-chartered

bank were appropriately removed to federal court) and Discover

Bank v. Vaden, 489 F.3d 594, 606-07 (4th Cir. 2007) (same),

rev’d on other grounds, 556 U.S. 49 (2009), with Thomas v. U.S.

Bank N.A., 575 F.3d 794, 797-800 (8th Cir. 2009) (holding

Section 27 does not completely preempt the field of state law

usury claims against state-chartered banks, and such claims are

not appropriate for removal to federal court).

The Court need not reach whether Congress intended Section

27 to provide the exclusive cause of action for usury claims

against state-chartered banks because, even if it does, Elevate

is not a state-chartered bank. Indeed, the District is not the

first plaintiff to bring a state law consumer protection

enforcement action against a non-bank entity that allegedly

“rents” a bank to provide predatory, high-interest loans to

consumers, nor is Elevate the first defendant to try to remove

this type of case to federal court on a jurisdictional theory of

complete preemption. The vast majority of courts that have been

confronted with the issue have concluded that the NBA and FDIA

do not completely preempt state law usury claims against a non-

20
bank. 3 The Court concludes the same here: because the only usury

claims in this case are against a non-bank entity, Section 27 is

not implicated and cannot provide a basis for removal

3 See Cmty. State Bank v. Knox, 523 F. App’x 925, 929-30 (4th
Cir. 2014) (finding that “claims against the non-bank loan
servicers fall squarely outside the scope of the FDIA” and thus
“no federal subject-matter jurisdiction exists” over the
claims); In re Cmty. Bank of N. Va., 418 F.3d 277, 297 (3d Cir.
2005) (finding that “removal was improper” where the complaint
asserted no claims against a national or state-chartered
federally insured institution); Meade v. Marlette Funding LLC,
Civ. Action No. 17-cv-00575-PAB-MJW, 2018 WL 1417706, at *2 (D.
Colo. Mar. 21, 2018) (remanding case after noting that “[c]ourts
in this Circuit and others have repeatedly held that when claims
are asserted against a non-bank entity, complete preemption does
not apply and remand to state court is warranted, even if the
non-bank defendant has a close relationship with a state or
national bank”); Meade v. Avant of Colorado, LLC, 307 F. Supp.
3d 1134, 1142-43 (D. Colo. 2018) (adopting and affirming a
magistrate’s recommendation to remand the case to state court
where the plaintiff “ha[d] not asserted a claim against a state
bank”); West Virginia v. CashCall, Inc., 605 F. Supp. 2d 781,
783 (S.D. W. Va. 2009) (“[B]ecause the State only asserts state
law claims against CashCall, a non-bank entity, the claims do
not implicate the FDIA, the FDIA does not completely preempt the
state-law claims, and there are no federal questions on the face
of the Complaint.”); Flowers v. EZPawn Okla., Inc., 307 F. Supp.
2d 1191, 1196, 1204 (N.D. Okla. 2004) (denying removal in a case
involving state law usury claims against defendants alleged to
have “enter[ed] into a ‘sham’ relationship” with state-chartered
banks “for the purpose of claiming federal preemption and
evading state usury, fraud and consumer protection laws” because
“[n]o claims have been brought against [the state-chartered
bank] in this lawsuit”); Colorado ex rel. Salazar v. ACE Cash
Express, Inc., 188 F. Supp. 2d 1282, 1285 (D. Colo. 2002) (“The
Complaint strictly is about a non-bank’s violations of state
law. It alleges no claims against a national bank under the
NBA.”).
21
jurisdiction. 4 Elevate’s arguments to the contrary are

unavailing, for the reasons set forth below.

2. The District’s Claims Are Directed at Elevate, a Non-
Bank Entity, Not the State-Chartered Banks

Although the sole defendant is Elevate, and the Complaint

contains no usury claims against FinWise or Republic, Elevate

nonetheless urges the Court to find that Section 27 completely

preempts the District’s claims because the claims are all “based

on or aimed at” high interest rates charged on loans originated

by state-chartered banks. Def.’s Opp’n, ECF No. 23 at 17.

Elevate maintains that it is merely a service provider used by

FinWise and Republic and that the District’s decision to bring

this suit against it, rather than the banks, is a “creative

pleading artifice” that “cannot [be used] to avoid the

preemptive effect of Section 27 on removal.” Id.

a. The Complaint Adequately Alleges that
Elevate is the True Lender

Courts that have addressed the complete preemption question

in rent-a-bank cases like this one have wrestled with similar

arguments, which non-bank entity defendants routinely make. In

response, courts “have found it necessary to determine whether

4 Because Section 27 is not implicated by the District’s
Complaint that includes state law usury claims against only a
non-bank entity, Elevate’s argument that the District could have
“opt[ed] out of the preemptive effect[] of Section 27” is
irrelevant. See Def.’s Opp’n, ECF No. 23 at 15.
22
the claims were actually directed against a federally or state-

chartered bank,” such that the preemptive force of federal

banking law applies to the claims despite the fact that the

claims were only brought against non-bank entities. See

CashCall, 605 F. Supp. 2d at 785 (citing cases). Numerous courts

have concluded that where a complaint “sufficiently allege[s]” a

non-bank entity is the true lender of the allegedly usurious

loans, the claims are properly directed at the non-bank entity

rather than the state-chartered banks that originated the loans.

See Marlette, 2018 WL 1417706, at *3 (“In circumstances where a

plaintiff has sufficiently alleged that the non-bank entity is

the true lender, courts have consistently come to the conclusion

that complete preemption does not apply, ‘even if the non-bank

entity worked closely with the bank to administer loans.’”); see

also CashCall, 605 F. Supp. 2d at 787 & n.9 (remanding case

where “the State alleges that CashCall is the de facto lender,”

even though “there [wa]s a factual question as to the identity

of the true lender”); Flowers, 307 F. Supp. 2d at 1206

(remanding case where “the Court has only the petition which

. . . alleges throughout that EZCorp through EZPawn is the true

lender."). Because the allegations in the Complaint govern, and

as these cases persuasively demonstrate, the Court cannot

exercise removal jurisdiction if “the allegations are

insufficient for the undersigned to conclude as a matter of law

23
that [FinWise and Republic] and not [Elevate] [are] the true

lender[s].” See Flowers, 307 F. Supp. 2d at 1206 (observing that

“the Court must take the allegations as true for purposes of the

motion to remand”); see also Colon v. Ashby, 314 F. Supp. 3d

116, 120 (D.D.C. 2018).

Upon careful review of the alleged facts, and in

consideration of the relevant persuasive case law, the Court is

satisfied that the District’s claims are directed at Elevate,

not FinWise and Republic. The Court cannot conclude, as a matter

of law based on the allegations in the Complaint, that FinWise

and Republic are the true lenders of the allegedly usurious

loans marketed by Elevate and sold by Elevate to District

residents. See Flowers, 307 F. Supp. 2d at 1206. 5 Moreover, the

5 Elevate’s argument that the “true lender rule” issued by the
Office of the Comptroller of the Currency (“OCC”) in October
2020 is relevant to the Court’s analysis of this issue, see
Pl.’s Notice of Supp. Authority, ECF No. 27 at 1; is now moot.
The rule, which pertained only to loans issued by national
banks, purported “to determine when a national bank or Federal
savings association (bank) makes a loan and is the ‘true
lender,’ including in the context of a partnership between a
bank and a third party, such as a marketplace lender.” See
National Banks and Federal Savings Association as Lenders, 85
Fed. Reg. 68742 (Oct. 30, 2020), ECF No. 27-1 at 2. “Under this
rule, a bank makes a loan if, as of the date of origination, it
is named as the lender in the loan agreement or funds the loan.”
Id. However, Congress passed a Congressional Review Act
resolution rescinding the rule, and President Biden signed the
resolution into law on June 30, 2021, noting that repealing the
“true lender rule” would “protect borrowers against predatory
lenders” that operated “so called ‘rent-a-bank’ schemes” to
“prey on veterans, seniors, and other unsuspecting borrowers.
White House, Remarks by President Biden Signing Three
24
District’s suit targets several of Elevate’s practices—such as

deceptive marketing, misrepresentations, and failure to obtain a

money lending license—and not just the provision of loans with

interest rates that exceed the District’s usury caps. This

further convinces the Court that the District’s suit aims to

enforce the District’s consumer protection laws against, and

protect District residents from, Elevate specifically. See Knox,

523 F. App’x at 929-30.

Here, the District alleges that Elevate not only provides

the website, marketing, analytics, software, and underwriting

models for the Rise and Elastic loans—for which it holds the

intellectual property rights—but it also “has the predominant

economic interest in the loans it provides to District consumers

via FinWise and Republic.” Compl., ECF No. 1-2 ¶¶ 1, 17, 20, 21,

22. The District alleges Elevate receives revenue through two

Cayman Islands special purpose vehicles—EE SPV and ESPV—that

purchase a 96% interest in the receivables for the Rise loans

and a 90% interest in the receivables for the Elastic loans,

respectively. Id. ¶¶ 41, 42, 73, 75. According to the District,

Congressional Review Act Bills into Law: S.J.Res.13; S.J.Res.14;
and S.J.Res.15 (June 30, 2021 17:37),
https://www.whitehouse.gov/briefing-room/speeches-
remarks/2021/06/30/remarks-by-president-biden-signing-three-
congressional-review-act-bills-into-law-s-j-res-13-s-j-res-14-
and-s-j-res-15/. Accordingly, the OCC’s “true lender rule” no
longer has force or effect, and the Court need not consider it.
25
in 2019, Elevate’s revenue from the Rise loans totaled over $390

million and its revenue from the Elastic loans totaled over $248

million. Id. ¶¶ 40, 72. The District alleges that Elevate: (1)

directs and controls the funding of the Rise and Elastic loans,

id. ¶¶ 37, 38, 69, 70, 71; (2) takes the risk of bad loans,

including by providing credit protections to EE SPV and ESPV,

id. ¶¶ 44, 45, 76, 77; and (3) acts as a servicer for the Rise

and Elastic loans, through its subsidiaries, including by

reconciling the accounts, posting payments and other credits to

the accounts, and providing periodic billing statements, id. ¶¶

47, 79.

There are many similarities between the rent-a-bank scheme

that the District alleges Elevate orchestrated and the schemes

allegedly perpetuated by non-bank defendants in the cases where

courts have found that complaints sufficiently alleged that non-

bank entities were the true lenders of the loans at issue. Each

of these alleged rent-a-bank schemes is unique, but the Court is

persuaded that the allegations in the Complaint are similar

enough for the Court to conclude that the District has

sufficiently alleged that Elevate is the true lender of the Rise

and Elastic loans.

For example, in Avant and Marlette, the State of Colorado’s

banking administrator alleged that non-bank entities “provide[d]

the website through which customers appl[ied] for [state-

26
chartered bank] Loans, . . . develop[ed] the criteria for making

loans, . . . decide[d] which applicants w[ould] receive the

loans, and [defendant] (or its affiliates) purchase[d] the loans

within two days after they [we]re made.” Marlette, 2018 WL

1417706, at *3 (quoting Avant, 307 F. Supp. 3d at 1147). The

Avant decision also points out that the non-bank entity in that

case “service[d] and administere[d] the loans, [bore] all the

risk on the loans in the event of default, pa[id] all the legal

fees and expenses related to the lending program, retain[ed] 99%

of the profits on the loans, and indemnifie[d] [the bank]

against all claims arising from [the bank’s] involvement in the

loan program.” Avant, 307 F. Supp. at 1147. In both cases, the

district court found that “plaintiff sufficiently alleges that

defendant is the ‘true lender.’” Marlette, 2018 WL 1417706, at

*3 (citing Avant, 307 F. Supp. 3d at 1147).

Furthermore, in Flowers, the plaintiff alleged that

defendant EZPawn made payday loans through checks drawn from a

bank, but EZPawn and its affiliate EZCorp, not the bank,

together “carrie[d] out all interaction with the borrowers,

accept[ed] the ultimate credit risk, collect[ed] and pocket[ed]

virtually all of the finance charges and fees, and own[ed] and

control[led] the branding of the loans which [we]re available

only at its pawnshops.” 307 F. Supp. 2d at 1205. Despite the

defendants’ argument that they merely acted as servicers for

27
loans made by a state-chartered and federally insured bank, the

court concluded that the allegations did not support a finding

that the bank was the true lender and the petition’s state law

claims were directed against the non-bank defendants. Id.

Finally, in CashCall, the State of West Virginia alleged

that defendant CashCall, Inc. marketed loans to consumers as an

agent of a South Dakota-chartered bank, the bank approved and

directly funded the loans, and CashCall would purchase the loans

three days later pursuant to the terms of an agreement with the

bank. 605 F. Supp. 2d at 783. Based on these facts, the court

found that the usury claims in the complaint were directed only

against CashCall. Id. at 786.

The Court is unpersuaded by Elevate’s argument that the

“lending program arrangements at issue [in Avant and Marlette]

are inapposite to the service provider structure that exists

between Elevate and the Banks.” See Def.’s Opp’n, ECF No. 23 at

20-21. Though Elevate contends it is only a service provider,

the scheme alleged in the Complaint is similar to the “lending

program arrangements” in Avant and Meade (as well as the other

cases discussed above). Compare Avant, 307 F. Supp. 3d at 1147

(“Avant develops the criteria for making the loans”), with

Compl. ¶ 20 (“Elevate also provides the analytics, software, and

underwriting models to FinWise and Republic for the provision of

Rise and Elastic loans”); compare Avant, 307 F. Supp. 3d at 1147

28
(“Avant (or its affiliates) purchases the loans within two days

after they are made by WebBank . . . [and] retains 99% of the

profits on the loans”), with Compl. ¶¶ 41, 73 (“[A] Cayman

Islands special purpose vehicle that operates for the financial

benefit of Elevate[] has purchased a 96% interest in the

receivables for the [Rise] loans . . . [and] a [different]

Cayman Islands special purpose vehicle that operates for the

financial benefit of Elevate[] has purchased a 90% interest in

the receivables from the {Elastic] loans . . . . These

receivables generate income for Elevate.”); compare Avant, 307

F. Supp. 3d at 1147 (“[Avant] services and administers the

loans”), with Compl. ¶¶ 47, 79 (“Elevate, through one of its

subsidiaries, acts as the servicer for the {Rise and Elastic}

loans. Its duties as a servicer include reconciling the

accounts, posting payments and other credits to the accounts,

and providing periodic billing statements.”); compare 307 F.

Supp. 3d at 1147 (“[Avant] bears all the risk on the loans in

the event of default”), with Compl. ¶¶ 45, 77 (“Elevate provides

credit protection to [the Cayman Islands special purpose

vehicles] against [Rise and Elastic] loan losses. This credit

protection places the risk of losses on Elevate.”).

29
 b. The Court Need Not Resolve Factual Disputes
at This Juncture

The Court acknowledges that Elevate disputes a number of

the District’s factual allegations and presents additional facts

to counter the District’s true-lender allegations. See Def.’s

Opp’n, ECF No. 23 at 9-10. 6 But the Court need not resolve those

factual disputes on a motion for remand. See Colon v. Ashby, 314

F. Supp. 3d 116, 120 (D.D.C. 2018) (“[T]he court must assume all

of the facts set forth by plaintiff to be true and resolve all

uncertainties as to the state substantive law in favor of the

plaintiff” on a motion for remand); see also Flowers, 307 F.

Supp. 2d at 1206 (stating that “the Court must take the

allegations as true for purposes of the motion to remand,” and

noting that the court had before it only the plaintiff’s

6 Elevate submits the following: (1) FinWise and Republic
“review[] and approve[] all marketing materials and campaigns
and determine[] the underwriting strategies and score cutoffs
used in processing applications”; (2) FinWise and Republic
“define all program parameters and provide full compliance
oversight over all aspects of their respective programs as
required by federal law”; (3) Elevate does not own or purchase
any interest in the Rise or Elastic loans after the banks
originate them; (4) the banks retains ownership of the accounts
associated with their respective credit products at all times;
(5) EE SPV and ESPV purchase participation interest in the loans
after origination, which it explains is “distinct from”
purchasing the loan itself because it “grants the purchaser the
right to receive amounts derived from repayment of the loan,”
but “ownership of the loan and the customer account remain with
the originating bank”; (6) an Elevate subsidiary provides credit
protection to investors in EE SPV and ESPV; and (7) Elevate does
not have an ownership interest in EE SPV or Elastic SPV. Def.’s
Opp’n, ECF No. 23 at 9-10.
30
petition and not all relevant agreements between the non-bank

entity and bank); Dandy v. Wilmington Fin., Inc., Civ. No. 08-

1027 JCH/GBW, 2010 WL 11493721, at *7 (D.N.M. May 3, 2010)

(where a non-bank entity argued it merely facilitated allegedly

illegal residential mortgage loans on behalf of a federal

savings bank, the court observed that “this contention merely

raises a factual question and cannot create federal

jurisdiction”). This is consistent with precedent in this

circuit that holds “federal jurisdiction is disfavored for cases

that are ‘fact-bound and situation-specific’.” Bender v. Jordan,

623 F.3d 1128, 1130 (D.C. Cir. 2010). 7

The Court is also unpersuaded by Elevate’s suggestion that

Krispin v. May Department Stores, 218 F.3d 919 (8th Cir. 2000)

and Discover Bank v. Vaden, 489 F.3d 594 (4th Cir. 2007), rev’d

on other grounds, 556 U.S. 49 (2009), direct the Court to

conduct a searching factual analysis that looks beyond the face

of the Complaint to determine the real party in interest in this

case. See Def.’s Opp’n, ECF No. 23 at 23. In Krispin, the Court

7 Elevate’s reference to this Court’s decision in State Farm
Bank, F.S.B. v. District of Columbia, 640 F. Supp. 2d 17, 24
(D.D.C. 2009)—in support of its argument that the Court must
conduct a real party interest analysis that looks beyond the
face of the pleadings—is misplaced. See Def.’s Opp’n, ECF No. 23
at 19 & n.9. That case had nothing to do with whether the Court
had jurisdiction over the case upon removal from Superior Court;
instead, the Court was analyzing whether federal law preempted
the District’s mortgage regulations when ruling on cross-motions
for summary judgment. See State Farm, 640 F. Supp. 2d at 18.
31
of Appeals for the Eighth Circuit (“Eighth Circuit”) considered

whether state law usury claims against a department store that

entered credit agreements with customers but later assigned

those accounts to a bank, while still maintaining a role in the

collection process and purchasing the receivables from the bank

on a daily basis, were claims directed at the bank rather than

the defendant store. 218 F.3d at 923-24. The court found that

the bank was the real party in interest, having determined that

“in these circumstances . . .. it makes sense to look to the

originating entity (the bank), and not the ongoing assignee (the

store), in determining whether the NBA applies” and completely

preempts the state law usury claims. Id. at 924. Courts have

since correctly questioned whether “this factual determination

based on state law should be made in the first instance by a

federal court on removal rather than the state court.” Flowers,

307 F. Supp. 2d at 1206. Relatedly, Krispin was decided in a

different procedural posture, as the Flowers court noted: “the

Eighth Circuit and the district court decided the issue on a

motion for summary judgment, finding there was no genuine issue

of material fact that the bank was the real party in interest.”

Id. Finally, as the District correctly points out, numerous

courts have distinguished Krispin on its facts, noting that

there was no dispute that the bank was a wholly-owned subsidiary

32
of the department store. See Pl.’s Reply, ECF No. 25 at 13-14 &

n.9 (citing cases).

Vaden is likewise unpersuasive. There, the Court of Appeals

for the Fourth Circuit (“Fourth Circuit”) held that a bank was

the real party in interest to a counterclaim in a lawsuit where

a loan servicer sued to collect credit card debt and the debtor

filed counterclaims asserting violations of state usury laws

against the loan servicer. 489 F.3d at 603. The Fourth Circuit

observed that an analysis of the real party in interest was

necessary given the “unique and complex relationship among the

parties” and to prevent plaintiffs from “artfully plead[ing]

state law claims against a non-bank defendant and thus frustrate

Congress’ intent that certain causes of action are always

federal.” Id. at 601 & n.5.

Elevate fails to address a subsequent Fourth Circuit

decision in a case that more closely resembles this case than

Vaden does. See Knox, 523 F. App’x 925. In Knox, the Fourth

Circuit called into question whether its own decision in Vaden

remains good law and, in any event, found Vaden unpersuasive

based on the distinguishing facts evident on the face of the

complaint. See Knox, 523 F. App’x at 929-30 (“Even if [the real

party in interest analysis] remains intact after the Supreme

Court’s reversal, see Vaden II, 556 U.S. 49, 129 S. Ct. 1262, we

would not reach the same result in the present case.”). The

33
Fourth Circuit concluded that “determination of which party

controlled the loan terms is far less integral here than in

Vaden,” noting that the claims in the complaint “specifically

target several practices of the loan servicers” and “unpaid

debts are not at issue.” Id.

For the same reasons the Fourth Circuit in Knox found its

earlier decision in Vaden unpersuasive when evaluating whether a

non-bank entity could claim protection from state law consumer

protection and usury claims by invoking Section 27’s preemptive

force, so too does this Court. As in Knox, the District’s claims

“do not merely challenge certain terms of the loans, but instead

specifically target several practices of the loan servicers.”

Id. at 929. As the District points out, of the four counts in

the District’s Complaint, three “do not turn on usury at all.”

Pl.’s Reply, ECF No. 25 at 9-10. 8 Where, as here, a state targets

several of a non-bank entities’ practices in a consumer

8 Count I concerns Elevate’s alleged deceptive marketing of the
Rise and Elastic loans, alleging that Elevate violated the CPPA
by “misrepresenting the cost and legality of the loans and
failing to disclose the interest rates of its loans.” Id. at 10
(citing Compl., ECF No. 1-2 ¶¶ 80-88). Count II concerns
Elevate’s alleged failure to disclose the true costs of the Rise
and Elastic loans, in violation of the CPPA’s prohibition on
unfair and unconscionable practices. Id. (citing Compl., ECF No.
1-2 ¶¶ 89-92). Count IV concerns Elevate’s alleged failure to
obtain a money lending license in the District, and whether
Elevate is in violation of the CPPA even if it is not the true
lender of the Rise and Elastic loans. Id. at 10-11 (citing
Compl., ECF No. 1-2 ¶¶ 100-103).

34
protection enforcement action, “[t]he totality of the Complaint

shows that the State’s suit is directed against a single,

specific entity violating a host of state laws including the

usury law,” and that entity is the non-bank, not the bank. See

CashCall, 605 F. Supp. 2d at 786. Indeed, in contrast to Vaden

and Krispin, where customers sought money damages caused by

specific usurious fees, when a state brings a consumer

protection enforcement action it is “seeking relief from the

harmful conduct of a specific entity . . . that does not benefit

from the privileges conferred by the FDIA, [and thus] the fact

that a state-chartered bank might be the true lender responsible

for alleged usurious loans is less significant . . . . [T]he

bank is not the targeted entity and cannot provide the sought

relief even if it turns out to be the real lender; the non-bank

entity would remain the target.” Id. at 788; see also Knox, 523

F. App’x at 930. That is the situation here—the District’s suit

seeks to protect District residents from Elevate based on

several practices that are allegedly harmful to its consumers,

and that remains true even if Elevate is not in fact the true

lender of the Rise and Elastic loans. See Pl.s Reply, ECF No. 25

at 9-11.

Further counseling against conducting a fact-intensive

analysis at this stage to determine the true lender of the Rise

and Elastic loans is that even if the Superior Court were to

35
conclude on remand that Elevate is not, in fact, the true

lender, that “will not result in [FinWise’s or Republic’s]

liability or regulation under state laws, but will merely

relieve [Elevate] of liability under those laws.” CashCall, 605

F. Supp. 2d at 787. If the Superior Court instead concludes that

Elevate is the true lender, as the District alleges, Elevate may

be liable under the District’s usury laws. But in either

situation, the state-chartered banks’ rights to make loans and

charge FDIA-permitted interest rates in the District will not be

affected. Id.

Accordingly, based on the facts alleged in the Complaint,

the Court rejects Elevate’s argument that the District’s state

law claims amount to claims against FinWise and Republic that

are completely preempted by Section 27 of the FDIA. While the

Superior Court may conclude on remand that FinWise and Republic

are in fact the true lenders of the Rise and Elastic loans, that

factual dispute does not create federal jurisdiction here.

3. The FDIC’s “Pervasive” Regulatory Oversight of State-
Chartered Banks Does Not Give Rise to Complete
Preemption Jurisdiction

In arguing that Section 27 completely preempts the

District’s state law claims, Elevate repeatedly invokes the

FDIC’s “pervasive regulatory scheme” and “detailed framework for

“overseeing the relationship between regulated state banks and

their third-party service providers.” See Notice of Removal, ECF

36
No. 1 at 1; Def.’s Opp’n, ECF No. 23 at 18, 20, 21-22. Elevate

points to the Bank Service Company Act, which “allows state-

chartered banks to engage service providers like Elevate, by

contract or otherwise, to perform bank-related function on

behalf of the bank” and “subject[s] [service providers] to

regulation and examination by the FDIC as if the services were

provided by the bank itself.” Id. ¶ 35 (citing 12 U.S.C. §

1867(c)). Elevate also points to formal and informal guidance

issued by the FDIC relevant to the relationship between state-

chartered banks and their service providers, including for

“services performed in connection with a bank lending program by

technology-enabled service providers like Elevate.” See Def.’s

Opp’n, ECF No. 23 at 17-18 (citing Notice of Removal, ECF No. 1

¶¶ 34-42). Finally, Elevate points to final rules issued by the

FDIC and OCC in June 2020 “formalizing the valid-when-made

doctrine, which holds that a loan that was valid when made will

not be rendered usurious by a subsequent transfer.” Id. at 21-22

& n.11 (citing Federal Interest Authority, 85 Fed. Reg. 44146

(July 22, 2020); Permissible Interest on Loans That Are Sold,

Assigned, or Otherwise Transferred, 85 Fed. Reg. 33530 (June 2,

2020)). Elevate argues that this “federal banking scheme

encompasses and encourages Elevate’s activities as a service

provider and allows Elevate to enable banking operations under

the purview of the FDIA and FDIC’s supervision without regard to

37
state usury laws.” Id. (citing Notice of Removal, ECF No. 1 ¶¶

34-44, 62-67).

The District, on the other hand, invokes the Dodd-Frank

Wall Street Reform and Consumer Protection Act (“Dodd-Frank

Act”) to argue that Section 27 should not be interpreted as

completely preempting state law usury claims against non-bank

entities. See Pl.’s Mot., ECF No. 15 at 20 & n.6. The District

contends that the Dodd-Frank Act clarified that the statute

should not “be construed as preempting, annulling, or affecting

the applicability of State law to any subsidiary, affiliate, or

agent of a national bank.” Id. (citing 12 U.S.C. §§ 25b(b)(2),

€, (h)(2)). Elevate disagrees. See Def.’s Opp’n, ECF No. 23 at

17 n.7.

These arguments, however, are not particularly relevant to

the issue of complete preemption, pursuant to which the Court

determines whether it can exercise removal jurisdiction because

Congress intended for a law’s preemptive force to be “so

extraordinary” that it replaces state law entirely and permits

removal, not whether federal law preempts state law in the

ordinary sense. See Caterpillar Inc., 482 U.S. at 392-93

(distinguishing ordinary federal preemption, which is raised as

a defense to allegations in a plaintiff’s complaint and cannot

serve as the basis for removal, from the “complete pre-emption”

doctrine); see also Lehmann v. Brown, 230 F.3d 916, 919-920 (7th

38
Cir. 2000) (“[T[he phrase ‘complete preemption’ has caused

confusion . . . by implying that preemption sometimes permits

removal. Unfortunately, ‘complete preemption’ is a misnomer,

having nothing to do with preemption and everything to do with

federal occupation of a field . . . . State law is ‘completely

preempted’ in the sense that it has been replaced by federal

law—but this happens because federal law takes over all similar

claims, not because there is a preemption defense.”).

While Section 27 may have the requisite preemptive force to

permit removal of state law usury claims against state-chartered

banks, neither the District nor Elevate has cited any cases that

would support a conclusion that Congress intended Section 27 of

the FDIA to completely preempt state law claims against non-bank

entities that are nowhere mentioned in the plain language of the

statue simply because a “detailed regulatory framework”

addresses the relationship between state-chartered banks and

non-bank entities. Elevate’s discussion of Marquette National

Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S.

299, 304-05 (1978) and related cases is inapposite. See Notice

of Removal, ECF No. 1 at ¶¶ 63-67. Marquette is not a removal

case and does not address complete preemption. Likewise, Sawyer

v. Bill Me Later, Inc., 23 F. Supp. 3d 1359 (D. Utah 2014) did

not discuss complete preemption or removal jurisdiction, despite

Elevate’s claim that it “appl[ied] complete preemption to claims

39
involving agents of state-chartered banks.” See Notice of

Removal, ECF No. 1 ¶ 67. In fact, the court in Sawyer explicitly

distinguished that case from removal cases, noting that “a case

relevant to questions of complete preemption in which a court

must consider whether a case can be properly removed to federal

court based on federal question jurisdiction [is] inapposite

here where the case is already properly in federal court.”

Sawyer, 23 F. Supp. 3d at 1369.

Accordingly, the Court concludes that Elevate’s arguments

concerning the FDIC’s “pervasive regulatory scheme” governing

state-chartered banks and their service providers do not affect

the Court’s finding that Section 27 of the FDIA does not

completely preempt the District’s state law usury claims against

Elevate. 9 As such, the Court holds that Section 27 of the FDIA

does not completely preempt the District’s state law claims

against Elevate, a non-bank entity, and it does not provide a

basis for this Court to exercise removal jurisdiction.

9 That is not to say that ordinary preemption is not a viable
defense under the FDIA—Elevate is “free to raise preemption as a
defense to this action in Superior Court, and ultimately seek
federal-court review by petitioning the Supreme Court for
certiorari if [Elevate] lose[s] in Superior Court.” See U.S.
Airways Master Exec., Council, Air Line Pilots Ass’n, Int’l. v.
Am. W. Master Exec. Council, 525 F. Supp. 2d 127, 135 (D.D.C.
2007).
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 B. The Significant Federal Issue Doctrine Is Not A Basis For
Removal

Having concluded that federal law does not completely

preempt the District’s state law claims against Elevate in this

consumer protection enforcement action, the Court now turns to

Elevate’s second asserted basis for removal: the significant

federal issues doctrine. See Notice of Removal, ECF No. 1 ¶¶ 76-

90. For the Court to exercise removal jurisdiction over a purely

state law claim under this narrow exception to the well-pleaded

complaint rule, a federal issue would have to be “(1)

necessarily raised, (2) actually disputed, (3) substantial, and

(4) capable of resolution without disrupting the federal-state

balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258

(2013) (citing Grable, 545 U.S. 308). This so-called Grable

exception is extremely rare and only creates federal subject-

matter jurisdiction in a “special and small” category of cases.

See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.

677, 701 (2006). As courts in this district have observed, “[i]t

takes more than a federal element to establish federal question

jurisdiction under the Grable framework, . . . and courts have

confined Grable to those rare state-law claims posing a context-

free inquiry into the meaning of federal law.” Flavell v. Int’l

Bank for Reconstruction and Dev., Civ. Action No. 20-623 (CKK),

2021 WL 1146301, at *7 (D.D.C. Mar. 25, 2021) (quoting

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Washington Consulting Grp., Inc. v. Raytheon Tech. Servs. Co.,

LLC, 760 F. Supp. 2d 94, 101-102 (D.D.C. 2011)).

Elevate contends that the Court may exercise federal-

question subject-matter jurisdiction over this case because of

the “significant issues of federal law that must be resolved to

determine the viability of the Complaint’s state law claims.”

Notice of Removal, ECF No. 1 ¶ 80. Elevate seems to contend that

the “significant issues of federal law” the require resolution

here are “the federal statutes, regulations and regulatory

guidance applied to state-chartered banks and their service

providers.” Id. ¶ 80. “Whether the fact pattern in this case is

subject to the ‘true lender’ analysis set forth in the

Complaint,” Elevate argues, ”and whether that analysis can

displace the longstanding and robust federal regulatory scheme

that authorizes the exportation of interest rates and the use of

service providers by state-chartered banks will involve, in the

words of Grable, the ‘validity,’ ‘construction’ and ‘effect’ of

federal law.” Id.

Elevate’s arguments are a misapplication of Grable because

the District’s claims do not “necessarily raise a stated federal

issue.” Grable, 545 U.S. at 314. In Grable, the plaintiff

asserted that because a federal statue requiring notice of the

seizure of property was not complied with, plaintiff should have

good title to certain seized land. Id. at 311. That is, the

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plaintiff’s action was based on a federal statute. The same is

true of the D.C. Circuit case on which Elevate relies. See

Bender v. Jordan, 623 F.3d 1128, 1130 (D.C. Cir. 2010) (federal

stock savings association asserted that because a federal

regulation did not entitle two former directors and the former

CEO to indemnification of expenses arising from a shareholder

securities law suit, the individuals were in breach of contract

for their failure to repay legal fees). Conversely, the District

does not rely on any federal statute or regulation to bring its

claims. Instead, the District’s action has been brought despite

Elevate’s assertion that the FDIA, FDIC, and federal regulation

permit the conduct that the District alleges Elevate undertook

in violation of the District’s laws. See, e.g., Notice of

Removal, ECF No. 1 ¶ 81 (“The Complaint alleges that the

structure of the loan transactions and the interest rate they

implement are unlawful under state law without regard to the

federal statutes, regulations or guidance, or the FDIC’s

regulatory oversight.” (emphasis added)). Elevate’s arguments

are properly understood as an assertion of a federal preemption

defense, which cannot serve as the basis for federal subject-

matter jurisdiction. See Animal Legal Def. Fund v. Hormel Foods

Corp., 249 F. Supp. 3d 53, 58 (D.D.C. 2017) (citing Caterpillar

Inc., 482 U.S. at 393) (a federal preemption defense “by its

very nature is not ‘necessarily raised’ by Plaintiff’s

43
Complaint, and indeed it is black letter law that ‘a case may

not be removed to federal court on the basis of a federal

defense, including the defense of pre-emption”).

Moreover, the main issue in this case is the identity of

the true lender of the Rise and Elastic loans. The true-lender

question is substantially factual, and the Superior Court is

well equipped to handle it, as many state courts have done in

the similar rent-a-bank cases cited throughout this Memorandum

Opinion. Conversely, substantial and necessarily raised federal

issues warranting federal subject-matter jurisdiction are ones

“posing a context-free inquiry into the meaning of federal law.”

See Flavell, 2021 WL 1146301, at *7. They are not “fact-bound

and situation-specific.” See McVeigh, 547 U.S. at 701. In the

only case the parties identified that involves both an alleged

rent-a-bank scheme and an assertion of federal jurisdiction

under the Grable exception, the district court concluded that

the issues surrounding the alleged true lender and whether

preemption would apply merely raised a factual question, rather

than a legal question that called for the interpretation of

federal statutes, making removal on this basis improper. See

Dandy, 2010 WL 11493721, at *7. The same is true here.

Because no substantial federal issues are necessarily

raised by the District’s Complaint, the Court concludes that the

44
significant federal issues doctrine does not provide a basis for

federal subject-matter jurisdiction in this case.

IV. Conclusion

Accordingly, for the reasons set forth above, the Court

GRANTS the District’s Motion to Remand to State Court. This case

shall be remanded to Superior Court. An appropriate order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
July 15, 2021

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