Suggestion to fight MTE Financial or any other Tribal immune PDL co.

First off, I would like to request a sticky for this post. I understand this is the first post I have made, but I felt it was of such importance that I registered at this website just so I could attempt to help others who may have problems or be concerned with this company.

Secondly, I would like to state that I am not an attorney, nor am I trying to give anyone legal advice. Anything in this post can obviously be used to help you if it can, but I cannot guarantee any outcome.

Finally I want to explain my intentions. I had came across a post on this site discussing MTE financial and the legality of their loans. After it was determined MTE financial issued loans that were against many state laws, a poster (suspiciously) came across a U.S. Supreme court ruling stating that this company could claim sovereign (Tribal) immunity and advised admins to tell posters to avoid trying to fight them (again suspiciously, but then again if they hadn't posted, I wouldn't have known what to look for... so... Thanks!). The post can be located HERE just scroll down it was made by "PDL Owner". Which if you are not familiar with this, sovereign immunity is something a benefit of Native American tribes that allows them immunity to face any legal matter related to the [U.S.] government. Anyway, after MUCH search (and headaches) I found a Supreme court ruling that trumps the one the case represented by the poster regarding this issue. My last intention is to provide you with a letter I have submitted to United Cash Loans (MTE Financial) that you can freely use (again I assume no liability from you using it though) if you think it can help you.

I want to mention some of the names of loan companies MTE financial does business as. The ones I have heard of are:

Rio Resources
ameriloan
TendollarPayday
United Cash Loans
1000 Payday Cash
Payday-Loan-Online-1000
500 Fast Cash
One Click Cash

Anyway, before I get to the good stuff, you MUST hear of the anguish it caused me (I suffered, so so will you ). For the last 2 days I have been scouring the internet searching through Supreme court case after case after case... Finally I came across a case law that states sovereign (Tribal) immunity is waived in some instances through contract clauses. It just so happens that MTE Financial (at least United Cash Loans of MTE Financial) uses the exact same clauses. Before I get ahead of myself, there are only 3 ways for sovereign immunity to not hold up in court. It's late, and I'm trying to hurry to get this finished, so I only remember two of them. The two I remember are an act of congress, or the member waiving the right to immunity.

There are two specific clauses that must be in the loan agreement for the cases I mention to apply to quashing MTE Financial's claim at sovereign (Tribal) immunity. The first clause requires a resolution of all contract-related disputes between both parties by binding arbitration. The second clause must state something similar to "arbitral awards may be reduced to judgment ‘in accordance with applicable law in any court having jurisdiction thereof". Like I said United Cash Loans (and possibly all MTE Financial) loan agreements have both of these clauses within them.

Now I know what you're thinking... "Arbitration clause?!?!? That doesn't benefit me, I'm waiving my right to sue". Well, yes and no... It does make it possibly a little more difficult to seek relief from them, but what it also does is waive's the company's right to sovereign immunity. Also arbitration is performed by local officials (near YOU according to MTE agreements) that are very knowledgeable of the law, and base their decisions solely on the law. Not to mention United Cash Loans (and possibly all MTE Financial) agreement states they will pay for the arbitration costs in a claim of less than $15,000.00. So even though you may or may not have waived a right to sue in public court (depending upon court interpretation since this is an illegal and void contract), you can still win suit against them and have the court uphold the award. According to:

C & L ENTERPRISES, INC., PETITIONER v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA, 532 U.S. 411 (2001) (The U.S. Supreme Court ruling on the case, not the cases tried and appealed throughout OK courts)
and
Val/Del, 145 Ariz., at 565, 703 P. 2d, at 509

You can read the actual case, but I will summarize. By stating they agree to settle disputes through arbitration, and the award can be enforced by the court (see above comments) they are implicitly waiving their right to sovereign (Tribal) immunity. There was another Supreme Court ruling that also stated that no person(s) with sovereign immunity who has performed some form of misconduct has ever explicitly waived the immunity, so implicit waivers will suffice.

Anyway, on to the important stuff. I spent a lot of time devising a letter to send to United Cash Loans (MTE Financial). Someone else had given a link to a Pollyandsay's blog with a letter template, but it just didn't seem to work with this situation, so I created my own. Anyway, for obvious reasons I have taken out sensitive information, even though if I left my information in the letter and you stole my identity you wouldn't get much . Remember, EVERYONE here is in debt!!

Alright this letter is related to Missouri laws, and how I am fighting them based on the laws of my state. If you so happen to use this letter, please make sure you adjust it accordingly with your state laws. It wouldn't make much sense otherwise . I'm going to go ahead and apologize, because this letter is pretty long. I just hope you can use it to hopefully help yourself against this company.

Before I copy and paste the letter (I know, I know... get on with it) I also wanted to mention. I had read over and over that people say with illegal loans you don't owe any interest, but you have a moral obligation to pay back what you borrowed. My thought on it is, the company has a moral obligation to not take advantage of people in trying times, and they have a moral obligation to not make fraudulent loans where the consumer suffers. I think that maybe the lesson they need to learn is for them to be out some money, regardless of how much you borrowed and how much you have already paid. According to the law, you do not owe them a dime. Maybe it's time for Karma to pay them a visit. Also, this looked really pretty in Microsoft Word, so forgive any weird looking formatting from the Copy/Paste into the forum. Anyway, without further ado:

CONTACT INFORMATION REMOVED

February 19, 2009
United Cash Loans
2533 N. Carson St Ste. 5020
Carson City, NV 89706

www.unitedcashloans.com
Phone Numbers: 800-354-0602 ; 800-279-8511
Fax Numbers: 888-570-9772 ; 800-803-8794

To Whom It May Concern:

As of today, February 19, 2009, I do not authorize United Cash Loans (also UnitedCashLoans) nor any representative, parent company, affiliate, or subsidiary of United Cash Loans, to withdraw any funds from the checking account under the name of NAME REMOVED, account number NUMBER REMOVED ("Account"), at BANK NAME REMOVED ("Bank"). Additionally, I revoke any other rights you may have been granted or entitled to for collection of any money pertaining to my account or any business we have conducted.

Your company is in violation of MO state statutes and codes. In addition to violating MO statutes and codes regulating small, small loans (less than $500.00) regarding usury caps and renewal limitations you have violated the following MO laws including, but not limited to:

RSMo. 408.500. 1. Lenders, other than banks, trust companies, credit unions, savings banks and savings and loan companies, in the business of making unsecured loans of five hundred dollars or less shall obtain a license from the director of the division of finance.

Missouri Division of Finance Rules of Department of Insurance, Financial Institutions and Professional Registration, Division 1140—Division of Finance, Chapter 11—Section 500, Companies, 20 CSR 1140-11.030 Licensing and General Provisions

PURPOSE: Section 500 companies are required by section 408.500.1 to 408.506, RSMo, to obtain a license from the director of finance. This rule establishes guidelines concerning licenses, which locations will require a license and other general provisions

.20 CSR 1140-11.030 (5) Contract Copies. A section 500 company shall provide the borrower with a copy of the signed contract at the time the loan is made and at each renewal. The company shall also retain a copy for the borrower’s file. Each contract shall contain the name and address of the lender and of the borrower.

(11) Penalties. Violations of this rule shall be regarded as violations of sections 408.500.1 to 408.506, RSMo and subject to the same penalties as provided in sections 408.500.9 and 408.500.10, RSMo.

Subject to these violations, the Missouri revised statutes also state:

408.505.7. No state or public employee or official, including a judge of any court of this state, shall enforce the provisions of any contract for payment of money subject to this section which violates the provisions of section 408.500 and this section.

In addition to the fact that you are not licensed in the state of MO (which renders the contract void and unenforceable for any payment of money) you are making loans which are illegal.

Additionally, prior to you making any claim that the contract with my electronic signature is only governed by the law of the state in which your company resides will be addressed and proven unsubstantiated. Not only has the contract been shown to be void and illegal, there is specific Federal case law that refutes any claim of this. Your company solicited, accepted, and transacted business with a citizen of the state of Missouri. According to laws regarding minimum contacts and personal jurisdiction you are subject to the laws of Missouri with this transaction, including the aforementioned laws. A couple of Federal case laws are as follows:

World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567

“When a defendant makes a conscious choice to conduct business with the residents of a forum state, ‘it has clear notice that it is subject to suit there.’”

Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, (W. D. Pa. 1997)

“[Zippo] Dot Com was under no obligation to sell its services to Pennsylvania residents. It freely chose to do so, presumably in order to profit from those transactions. If a corporation determines that the risk of being subject to personal jurisdiction in a particular forum is too great, it can choose to sever its connection to the state. Id. If [Zippo] Dot Com had not wanted to be amenable to jurisdiction in Pennsylvania, the solution would have been simple–it could have chosen not to sell its services to Pennsylvania residents.”

It has also been brought to my attention that United Cash Loans, MTE Financial, its representatives, parent companies, affiliates, or subsidiaries intend to claim sovereign (Tribal) immunity when consumers discover the contract is made based on illegal grounds. According to the Tribal Immunity Doctrine there are three methods which prevent the use of sovereign, or tribal, immunity. The limitations are: abrogation by Congress, waiver by tribes, and claims against individual tribal officials to compel compliance with federal law. According to more Federal case law:

C & L ENTERPRISES, INC., PETITIONER v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA, 532 U.S. 411 (2001)

“The construction contract’s provision for arbitration and related prescriptions lead us to this conclusion. The arbitration clause requires resolution of all contract-related disputes between C & L and the Tribe by binding arbitration; ensuing arbitral awards may be reduced to judgment ‘in accordance with applicable law in any court having jurisdiction thereof.’… the Tribe clearly consented to arbitration and to the enforcement of arbitral awards in Oklahoma state court; the Tribe thereby waived its sovereign immunity from C & L’s suit. The judgment of the Oklahoma Court of Civil Appeals is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

Val/Del, 145 Ariz., at 565, 703 P. 2d, at 509

“…because the Tribe has “agree[d] that any dispute would be arbitrated and the result entered as a judgment in a court of competent jurisdiction, we find that there was an express waiver of the tribe’s sovereign immunity’”

According to these Federal case laws, and depending upon court interpretation, you may not be able to make a claim of sovereign (Tribal) immunity against any arbitration or suit regarding this illegal loan contract. Furthermore, as previously mentioned, being that this loan is illegal you could possibly face criminal action. According to more Federal case law:

State of Colorado v. Cash Advance and Preferred Cash Loans, Case Number 05 CV 1143, March 12, 2007.

“…claims of tribal immunity do not prohibit a state from investigating violations of its own laws occurring within its own borders and noted that tribal activities conducted outside of tribal lands are subject to state regulation.”

In summation, you have chosen to conduct business where, according to the laws regarding minimum contacts, gives jurisdiction to the courts of the State of Missouri. You have also given consent that “Any participatory [arbitration] hearing will take place at a location near your residence”; thus if arbitration can possibly be granted on your behalf this also gives jurisdiction to arbitration in the state of Missouri. You have violated numerous Missouri statutes and codes, including not having a license issued by the Missouri Division of Finance (which is required by law to conduct business with these types of loans). You have also violated a statute that unambiguously declares that the contract is unenforceable by any Missouri judge, court, public employee, etc. This could also mean you cannot file a motion to compel arbitration in the State of Missouri since this motion must be filed in a court of jurisdiction. Even if you were able to file a motion to compel arbitration, and were granted any reward, a court may not award judgment(s) for arbitration awards due to the violation of the aforementioned Missouri statute. Finally I have warned that Federal case law supports that even though you may enjoy sovereign immunity, the clauses in the contract may demonstrate, subject to court interpretation, your waiver of such rights.

In light of this information I demand United Cash Loans (also UnitedCashLoans), any representative, parent company, affiliate, or subsidiary of United Cash Loans (also UnitedCashLoans ) close my account, and cease and desist from attempting to perform or actually performing any of the following actions:

• Contacting me (including by any contact information you have relating to me)
• Contacting anyone regarding this (including but not limited to any relatives or references)
• Collecting any money in any form relating to my account from me or from anyone else
• Turning my account over to any collection agency
• Providing derogatory or negative information or remarks to any credit reporting bureau or agency
• Providing derogatory or negative information or remarks about me to any entity
• Using any other means not previously stated regarding contacting, exchanging information, collecting, soliciting, and/or harassing me (or anyone else relating to my account).

Be advised that any and all phone conversations will be recorded. Any written communication made from you will be documented and saved. Any information that is made public (including but not limited to information made to credit bureaus) will be documented and saved. All of which will be compiled and used as evidence of your violations and used against you to pursue any relief I may be entitled to.

I certify that this letter will be mailed to you at both the postal address on your website (in Miami, OK), and your postal address provided by the Better Business Bureau (in Carson City, NV). The letters will be sent both by certified mail with return receipt requested and regular postal mail with delivery confirmation. This letter will be e-mailed and faxed to you at the information you have provided on your website, as well as to your fax number listed by the Better Business Bureau. All of this is being done to avoid any doubt that you have received the document in some manner, and to prevent any defense you may have in stating the letter was not received by you. Also be advised that a copy of this letter will be given to my bank to inform them that any transaction (including debit of any funds) you attempt to make will be unauthorized.

I hereby expressly reserve any and all other rights, defenses or contentions which are available to me by law or otherwise, and I do not waive any such rights or defenses which I presently have or which may become known in the future. Any such waiver that may or may not currently exist is now revoked.

Any continued violations of the law or any violations of the terms of the cease and desist will certainly force me to use any action necessary to pursue relief. This is including but not limited to filing a complaint with the Federal Trade Commission, filing a complaint with the Better Business Bureau, filing a complaint with the Missouri Attorney General’s office, filing a complaint with Missouri’s Division of Finance, and pursuing any civil relief and criminal justice for which I may be entitled to and for which you may be guilty of. This includes any individual or civil law suit I may be entitled to file against your company and/or any representative in violation as well as any criminal infractions you may be guilty of committing.

I urge you to give this letter the immediate attention it deserves.

Sincerely,


NAME REMOVED

Sure, you can take them to arbitration. And the NAF will rule in favor of the payday lenders like they always do. Problem is that the only real power over payday lenders is the threat of enforcement action by the state. And a California appeals court just ruled - in a case in which United Cash Loans and its sister companies were the defendants - that sovereign immunity does apply when the state tries to enforce its laws.

Even if the state does not enforce the law that does not mean they are going to come after you legally if you default.

It just means they can't stop them from making the loans and they won't help if you do have one.

I'm totally confused by all of it. What happens if you live in a state such as I do in NC where payday loans are prohibited whether they are legal lenders or not? I have loans with MTE and United Cash Loans. My MTE loan went straight to A.K.A Recovery. MTE never tried to contact me just sent the loan to collections. I owe $210 on the principal and A.K.A. wants $755.00. I sent them a Debt Validation letter along with the state payday loan laws for NC. United Cash Loans sent me a text message to call them but I haven't heard anything else from them. Both companies received certified letters from me but I'm sure that doesn't mean a whole lot.

to the guest who keeps harping on the california appeals court.fine,but the california AG as well as alot of AG'S still say that any loans given by MTE are illegal.the reason?because the federal gvoernment is basically allowing a p.o. box mail drop to be considered there address.just about every AG knows they have physical locations that are not in miami OK.my IL AG'S office told me that MTE claims some flimsy exemption because they pay the tribe in miami to have the p.o. box.her office and other AG'S will always tell people that any MTE loans are illegal.alinewcombe,your AG will say the same thing.they are illegal do not give what guest said any weight.

You're correct paul. This is the problem with e-commerce. At the current time, there is very little precident for contractual issues over the internet because of the lack of rulings in favor or against. While the states say they are illegal, there is a court ruling in CA that says otherwise. Which is correct, it depends on who you ask but generally the courts will prevail.

The bottom line is that until there is more cases and appeals in the courts system, this is a very gray area and MTE finally has atleast one dog in the fight with a chance.

Let me see if I follow what Paul is saying. The State of California said MTE is illegal and tried to force the company to stop making loans in California. MTE ignored the cease and desist letter and California took them to court to get an injunction. The appeals court ruled against the state. But Paul says that doesn't count all that matters is that the regulator says they are illegal even though the regulator argued that in court and lost. When 500FastCash sues someone in California should the borrower tell the judge to ignore the appeals court decision, cause the moderators on debtconsolidationcare.com say they're illegal? Or is it that hard for the folks that run this site to admit they are wrong about something?

it's obvoius you work for this illegal company.when if ever has your totally illegal company ever sued anybody?go back to the phones idiot.this is an illegal company and would never sue anybody.your verbage gives you away shill.i've siad it before and will say it again.you have immunity from prosecution.if you were to sue you lose the immunity.having exemptions doesn't make you legal.

paul, actually the guest has a point and that is what I was trying to get accross. This is such a huge gray area that has to be cleaned up, but probably will not in the near future. You are actully also correct regarding the last time an unlicensed lender utilized small claims court. Keep your eyes and ears open for what the future may bring and if someone should have no other option, steer them to a legal, licensed lender.

i just know owner that no d/b/a of this group has ever sued anyone.because they would lose there exemption.if this place or any other d/b/a tried to sue outside of there supposed tribal ground.it would be them who would end up paying.trust me i know these state govt's hate the exemption,but again that doesn't make them less illegal.it just means they keep there stupid exemption.i say it's business as usual where there concerned for now.

You're correct about "business as usual", but until another ruling changes the precident the California findings prevail. This is regardless of the OP feelings...

As I said when this discussion first came up, I don't like the findings. They put legitamate lenders at a disadvantage because we HAVE to follow regulations on how and where we can do business. This falls into the same catagory as the federally chartered banks offering "PDL's" and bypassing state regulations.

Does anyone other than me see dual identity here? Hiding behind a key board to say things you cant use your real identify for is laughable.

[quote]Does anyone other than me see dual identity here? Hiding behind a key board to say things you cant use your real identify for is laughable.[quote/]

With all due respect...

What are you talking about?

we are somewhat in agreement.after speaking with my AG.what happened in CA doesn't or shouldn't effect how other states look at MTE or there d/b/a's.they are still illegal and still should looked at as such.

Correct. We need more decisions to clear up the picture.

Let's move on...

Ok I want to point a couple of things out to some people. First let's start with the obvious. PDLOwner, I could say with nearly 100% certainty that you not only work in the payday loan industry, but that you are probably a representative of some sorts of MTE Financial (or whatever name you guys decide to go by). Every post of yours that I see is one bent on trying to make people believe they have no grounds to fight MTE, and at the same time you attempt to act as if you are on their side. So that said, I take all of your comments with a grain of salt seeing as how they seem to be in the interest of the payday loan industry rather than the consumers. Now onto some other stuff.

the first response to my post said:
This is completely untrue. First off, arbitration is basically a simplified form of court trial. Just because the rules are governed by NAF, does not mean an NAF employee will arbitrate the claim. Furthermore, they have to adhere to state laws as well. Luckily the state that I am in says that United Cash Loans (or MTE) can not enforce any provision of the agreement, seperate from possibly the arbitration agreement, but they are entitled to nothing through neither arbitration or through the court system because the law states this (RSMo 408.505.7).

Now, to address your comment about the California appeal court. First you must understand that a court of law can only make decisions based upon information provided at the time. It would be impossible to expect every attorney or judge to memorize every case law their is. It is the attorney's job to research the case and prove why their client is right. So my response to you is, I do not live in CA, do you? A CA court could make a ruling that it is illegal to chew with your mouth open... know what that means for me in MO? Nothing. The only case laws that have any precedence in a trial, are cases heard within any court of the state (including the state supreme court), and any course decided upon in the (Federal) U.S. Supreme Court. So I guess this could become a "case-by-case" type of situation, until the U.S. Supreme Court makes a ruling (if it hasn't already). One thing I do know for sure, is that it is my understanding (Thanks to paulmergel) that this company uses what the courts call a "rent-a-tribe" scheme, which could open up a whole new world of defenses in regards to getting past their immunity.

To respond to alinewcombe, I would have to say, first off check with your state laws, but if PDL are completely illegal in your state then the contracts that bind them would most likely be unenforceable or illegal as well. Due to the law concerning minimum contacts these PDL companies are subject to jurisdiction in your state which means I doubt any court would rule in favor of them in any way. Again, check with your state laws though.

To respond to MTE Fin... I mean PDLOwner you said:
First off, whether or not their is a whole lot, or even just a little amount of precEdent over these contractual issues over the internet does not make a difference. It does not require multiple U.S. (FEDERAL) Supreme Court rulings, it requires only one. If you read my original post, I have found several that were decided on a FEDERAL level, and have a much higher legal superiority than any state court (yes, including CA). I can guarantee you that if you go to court against MTE (or anyone else for that matter), and they attempt to give the judge a case related to the CA court, and your defense/response is a U.S. Supreme Court ruling that completely contradicts and says the opposite of the CA court decision, the judge will take the decision of the highest court. All decisions made in Federal court are FINAL.

Also, just wanted to mention how disturbing the last part of your post was... where you said "MTE finally has atleast one dog in the fight with a chance". Was that a Freudian slip perhaps? Either way, if that case gives MTE a "dog" in the fight with a chance, any of the Federal cases I mentioned in my original post just gave that dog euthenasia... fear not, he didn't feel anything.

In response to the next post by Guest you said:
No, they should not tell the judge to ignore the appeals court decision, they should just give the judge a U.S. Supreme Court ruling that overrules that CA court's decision.

To respond to PDLOwner's next two posts, but I'm only going to quote the last one"
I really have to calm myself before I respond to your remarks as you try to take hope from anyone caught up in the trap you... err MTE put them in. I will reiterate what I have already stated, but didn't know it was needed to be said... I thought it was pretty implicit that FEDERAL law supercedes STATE law. This was a decision brought out in CA court, most likely it was due to an attorney who did not sufficiently do their homework. It has no relevance on anyone in any other state. ALSO, if someone in CA were to sue MTE, and MTE brought up this defense, it would only take ONE Supreme Court ruling that overrules that decision. Let's not even forget the fact that just because a CA court of APPEALS ruled in this manner, that this can still go to the Supreme Court where it can be ruled on. Hopefully by then, the attorney does a little more homework.

In response to paulmergel you stated:

First off let me just say, thank you for your many insightful posts. It seems your responses are genuine, and you obviously show a concern for the consumers who have been subject to these illegal actions. I also did not need to respond to this statement, just wanted to say that I agree with you 100%, and that is also the point I am trying to get across. MTE is grabbing at straws with this CA case, and it has little to no bearing on a lot of us. Let alone, it could also be proven to have no bearing what-so-ever if there is a Supreme Court ruling that overrules this.

Finally, back again to PDLOwner you said:
I say... no let's stay. We do not need more decisions to clear up the picture, the picture is all but finished. Read my several previous responses, because I don't want to type it again and I'm sure people don't want to read it again.

All in all, I appreciate most of the comments. It seems that some people are doing whatever they can to discourage people from fighting this company... my guess would be because they are well aware that it would only take ONE person with enough knowledge to start a class action lawsuit against them. I think they know that there is enough there for this to occur too. They would most likely end up bankrupt, and the world would be a better place because of it. I know I certainly wouldn't shed a tear for them. For now, all they can do is sit back and discourage people from making a moral stand against them. I'm sure they realize their days are most likely numbered.

Any further comments are appreciated. Also, if someone needs specific help with their state information, I can certainly do my best to try and help. I'm sure it is probably easier for someone who lives in the state you do to help, but I'd be glad to assist in any way I can.