The out-of-state banks, however, are not subject to these civil penalties in § 16-17-3 or § 16-17-4(a)

The out-of-state banks, however, are not subject to these civil penalties in § 16-17-3 or § 16-17-4(a)

The Act provides that any individual borrower or class of borrowers whose payday loan was procured pursuant to an illegal contract between a payday store and an out-of-state bank can sue the payday store for “three times the amount of any interest or other charges to the borrower,” and the court must award successful plaintiffs attorneys’ fees as well as costs. Ga.Code Ann. § 16-17-3. “Id. § 16-17-4(a).

To qualify for a preliminary injunction, the lenders had to show: (1) a substantial likelihood of success on the merits; (2) that they would suffer irreparable injury without the injunction; (3) that the threatened injury outweighed whatever damage the injunction would cause the State of Georgia; and (4) that, if issued, the injunction would not be adverse to the public interest See Four Seasons Hotels & Resorts v. Consorcio Barr, 320 F.3d 1205, 1210 (11th Cir. 2003). A “preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly carries the burden of persuasion” on these four elements. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (internal quotation marks and citation omitted).

The plaintiffs filed the transcript as supplemental authority. Georgia has moved to strike the transcript, arguing that it is not a proper supplemental authority under Fed. R. App. P. 28(j). Because the transcript does not affect our conclusion, we deny Georgia’s motion as moot

The dissent also emphasizes that the heavy federal presence in national banking and the excessive federal regulation of national interest rates extend as far back as 1864 with the enactment of the NBA, and that § 27(a) of the FDIA “mirrors” § 85 of the NBA

The dissent emphasizes the heavy federal presence in national banking, but inappropriately, in our view, marginalizes the role of states in banking matters. The centerpiece of the federal banking laws is the National Banking Act of 1864 (“NBA”), which establishes that national banks are free from state interference and subject to only federal banking regulations. National banks are endowed by federal law with “all such incidental powers as shall be necessary to carry on the business of banking.” 12 U.S.C. § 24 Seventh. However, the NBA does not govern or protect state banks. Furthermore, there is no corresponding grant of “all incidental powers” to state banks in the FDIA as there is to national banks in the NBA.

In addition, the State may bring an action for civil penalties against payday stores who violate subsections (a) or online Mentor payday loan (b) “equal to three times the amount of any interest or charges to the borrowers in the unlawful transactions

In contrast to the broad protection provided under the NBA, the FDIA created the FDIC for the purpose of protecting customers of failed banks by making deposit insurance available to qualified state and federal lending institutions. Nonetheless, as explained above, states and state laws, not the FDIC and the FDIA, remain the primary regulators of state banks.

However, the NBA regulates the interest rates of national banks, and § 27(a) of the FDIA (affecting state banks) was not enacted until 1980, and the FDIA, unlike the NBA, expressly preserves the state’s traditional powers over state banks.

The dissent states that ” [p]reemption would be a meaningless doctrine if states could effectively rewrite federal statutes by adding conditions or limitations.” In this case, the Georgia Act does not add a condition or limitation to a federal statute. Instead, as explained herein, the Georgia Act regulates conduct outside the scope of § 27(a). Rather than making preemption the all-powerful force the dissent suggests, we limit federal preemption of the state’s regulation of state banks to what it is intended – preemptive only within the scope of § 27(a).

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