Last Week, This Morning

September 28, 2026

Below you will find several key developments in the financial services industry, including related developments in information privacy and data security, from the past week. We add an "Amicus Brief(ly)¹" comment to each item, where we briefly (see what we did there?) note for friends (and again?) of CounselorLibrary the important takeaways from the developments outlined in the email. Our legal reporters - CARLAW, HouseLaw, InstallmentLaw, PrivacyLaw, and BizFinLaw - provide more comprehensive, real-time updates of federal and state laws, regulations, litigation, and other industry items of interest. For a personal guided tour and free trial of any of these legal reporters, please contact Michael Willer at 614-855-0505 or mwiller@counselorlibrary.com.

On September 23, Minnesota Attorney General Keith Ellison announced that his office obtained a settlement with the Chief Executive Officer and the Director of Operations of an online lender wholly owned by the federally recognized Chippewa Cree Tribe, resolving allegations that the tribal lender entered into installment loans (typically between $350 and $1,500) with Minnesota consumers at annual interest rates (typically between 570% and 697% APR) in excess of those permissible under Minnesota law. The AG's complaint, filed in March 2026, sought declaratory and permanent injunctive relief pursuant to Minnesota's general usury law (Minn. Stat. ch. 334), the Minnesota Regulated Loan Act (Minn. Stat. ch. 56), the Minnesota Short-Term Loan Statute (Minn. Stat. § 47.601), the Minnesota Prevention of Consumer Fraud Act (Minn. Stat. §§ 325F.69-.70), the Minnesota Uniform Deceptive Trade Practices Act (Minn. Stat. §§ 325D.44-.45), the Minnesota False Statement in Advertising Act (Minn. Stat. § 325F.67), and the federal Consumer Financial Protection Act. The AG contended that the defendants could not invoke tribal ownership and sovereignty to avoid Minnesota's usury and consumer protection laws when making and collecting loans to consumers who reside in Minnesota. The AG alleged that the subject loans were void and that, therefore, borrowers had no legal obligation to pay the amounts being collected.

After the filing of the AG's complaint, the tribal lender, despite maintaining its position that Minnesota law does not apply to its loans, adopted a resolution that, effective April 8, 2026, implemented changes regarding lending to Minnesota residents. Specifically, the resolution adjusted the APR to 8% for: (1) any loan that the lender made to an individual who listed a Minnesota address on his or her loan application and had an outstanding balance as of April 8, 2026; and (2) any loan that the lender made after April 8, 2026, to an individual who listed a Minnesota address on his or her loan application.

The settlement does not impose penalties or monetary damages because of the sovereignty of the lender's tribal owner, but it requires the defendants to cease engaging in the business of marketing, advertising, and making loans to consumers who reside in Minnesota unless the defendants comply with Minnesota consumer lending laws. The settlement also provides that the lender may collect only the original principal on existing loans, with all interest cancelled after the effective date of the settlement agreement.

Amicus Brief(ly): The Minnesota AG has had the tribal lending model in his crosshairs for a few years. This settlement is the third in three years, making clear that the AG does not believe in the tribal lending model, though the Chippewa Cree Tribe was able to avoid paying a penalty to the state by virtue of its sovereignty. The AG's arguments focus on the fact that, while the subject of this consent order is a company that the Chippewa Cree Tribe owns, the tribe is "transacting business in Minnesota" when it markets and makes loans to Minnesota residents. The compromise in this settlement allows the tribe to collect just the principal outstanding on loans, rather than voiding the loans altogether, which was on the table. Based on this settlement and the ones before it, we have a clear sense that tribal lending in Minnesota will look different going forward.

On September 23, Colorado Attorney General Phil Weiser announced that the Administrator of the Colorado Fair Debt Collection Practices Act obtained a stipulated final order with a collection agency that allegedly violated Section 5-16-111(6) of the Colorado FDCPA by filing for default judgments against consumers with medical debt without complying with certain evidentiary requirements.

Senate Bill 93, which was enacted in 2023, amended the Colorado FDCPA to require a creditor, debt collector, or collection agency that files a legal action to collect medical debt to, among other things, provide evidence of the medical debt prior to the entry of a default judgment against a consumer. Specifically, Colorado Revised Statutes § 5-16-111(6) provides: "Prior to entry of a default judgment against a consumer in a legal action on a medical debt, the plaintiff shall file with the court evidence that satisfies the requirements of rules 803(6) and 902(11) of the Colorado rules of evidence or that otherwise, as authorized by law or rule, establishes the amount and nature of the medical debt and includes: (I) The original account number at charge-off; (II) The original creditor at charge-off; (III) The amount due at charge-off or, if the balance has not been charged off, an itemization of the amount claimed to be owed, including the principal, interest, fees, and other charges or reductions from payment made or other credits; (IV) An itemization of post charge-off additions, if any; (V) The date of the last payment, if applicable, or the date of the last transaction; and (VI) The date the debt was incurred."

Under the settlement, the collection agency will vacate any default judgments entered against affected consumers and cannot move to file new judgments until affidavits compliant with the law are provided to those consumers. The collection agency will also pay $30,000 to the state.

Amicus Brief(ly): Concerns about the collection of medical debt have arisen in a number of states over the past several years. Many states have adopted laws and regulations limiting what holders and collectors of medical debt can do to collect that debt, including prohibiting the furnishing of payment performance data to consumer reporting agencies, prohibiting the accrual of interest on medical debt, requiring providers to offer payment plans, and restricting the sale of medical debt. Looking back a little further, in reaction to the increasing number of default judgments that courts were granting in consumer collection cases, some states imposed procedural requirements to require holders of consumer debt to include documentation and debt affidavits in their pleadings. The alleged failure to comply with those procedural requirements in Colorado was the focal point of this case and settlement. The collection agency's agreement to vacate judgments and pay a $30,000 fine is a painful reminder to monitor for changes in a court's pleading rules for default judgments and otherwise.

On September 22, Alaska Attorney General Cori Mills announced a settlement with a used car dealership to resolve allegations that it failed to include document fees in the prices it advertised for cars on its website. Under Alaska law, motor vehicle dealers must include all dealer fees in the advertised prices of their vehicles.

Under the settlement, the AG estimates that the dealership will pay more than $500,000 in restitution to over 5,000 affected consumers, providing each affected consumer with a $100 payment. According to the AG's news release, the restitution period will extend back to November 4, 2018, because the parties agreed to pause the running of the state's 6-year statute of limitations while the dealership unsuccessfully attempted to quash an investigative subpoena issued by the state. The AG also states that her office accepted less than full restitution for affected consumers (the document fee was generally $499) because it did not want to put the dealership out of business.

Amicus Brief(ly): The Alaska AG tends to be quiet among these pages, so when developments like this make news in the state, we pay attention. For regular readers, the vehicle price advertisement claims that formed the basis of this settlement will come as no surprise. State enforcement agencies have been actively pursuing claims that vehicle dealers' price advertisements leave mandatory fees out of the advertised prices in a way that misleads consumers. That's the crux of this AG action, which resulted in an expensive settlement. With the Federal Trade Commission's publication of FAQs on this very subject earlier this month, dealers should be on high alert about potential claims related to price advertisements that do not include fees that dealers charge in every transaction (like the document fee in this case).

The U.S. District Court for the District of Maryland recently decided a case in which several individuals sued a company for violating the Maryland Consumer Loan Law, the Maryland Consumer Protection Act, and the federal Truth in Lending Act in connection with its earned wage access product. The company moved to dismiss the complaint, and, in an earlier opinion, the court granted the motion as to the MCPA claim but denied it as to the MCLL and TILA claims. Thereafter, the only remaining plaintiff filed an amended complaint alleging violations of the MCLL, TILA, and the Maryland Consumer Debt Collection Act. The company moved to dismiss the claim under the MCDCA, which incorporates provisions of the federal Fair Debt Collection Practices Act, and the court denied the motion.

In support of its motion to dismiss the MCDCA claim, the company argued that its earned wage access advances are not "debt" under the MCDCA because the recipients have no legally enforceable obligation to repay them. Because the MCDCA does not define "debt," the court looked to case law as well as the broad remedial purpose of the statute and determined that the plaintiff's reading of the term as not necessarily requiring a legally enforceable obligation to pay was plausible.

The company also argued that, as a debt originator, it is not a debt collector for purposes of the MCDCA. The statute defines "collector" as "a person collecting or attempting to collect an alleged debt arising out of a consumer transaction." The company argued that the MCDCA's definition should track the definition of "debt collector" in the FDCPA, which requires that the debt be owed or due to another. The court rejected the company's argument that the FDCPA definition controls merely because the MCDCA incorporates substantive provisions of the FDCPA. Instead, the court found that the Maryland legislature's intentional incorporation of certain substantive portions of the FDCPA but not its definitions "is dispositive as to the definition of 'collector' under the MCDCA" and compels the conclusion that the MCDCA's definition applies.

Finally, the court addressed the company's argument that the plaintiff did not allege sufficient facts to support his claims under the FDCPA as incorporated into the MCDCA - that the company violated the provision prohibiting the collection of any amount unless expressly authorized by agreement or permitted by law and the provision prohibiting threats to take any action that cannot legally be taken. The court relied on its previous opinion in the case to determine that the plaintiff sufficiently alleged that the company is subject to and is operating in violation of the MCLL, rendering the agreement between the company and the plaintiff invalid. The court also rejected the company's claim that the plaintiff cannot maintain both FDCPA claims based on the same facts.

Amicus Brief(ly): We know from the Fourth Circuit's Alexander v. Carrington Mortgage Services, LLC, decision in 2022 that the courts are reading the definition of "debt collector" in the MCDCA as expansively as it is written. We understand the EWA provider's inclination to argue that the FDCPA's definition of "debt collector" is a better fit, but we also understand why the court disagreed based on the language of the statute. The definition is inclusive, and as challenging and asymmetrical as it can be for an originating creditor to comply with the FDPCA when servicing its own debt, that is what Maryland law appears to require.

The Court of Appeals of Florida recently decided a case that addresses whether the federal Graves Amendment preempts state law vicarious liability for negligent operation of a loaner vehicle that a dealership provides for a short period while a car - sold or leased from the dealership - is being serviced. According to the facts of the case, an individual leased a vehicle from a dealership and later brought the vehicle into the dealership for an oil change and tire replacement. The lessee paid for the tire replacement and installation, but the oil change was a complimentary service included in his lease agreement. The dealership provided the lessee with a loaner vehicle while his car was being serviced. The lessee signed a rental contract at the dealership in order to receive the loaner vehicle. The lessee was involved in an accident with another individual while driving the loaner vehicle. The individual sued the lessee and the dealership for negligence. The dealership moved for summary judgment, contending that the federal Graves Amendment and Section 324.021(9)(c)3 of the Florida Statutes barred its vicarious liability for the lessee's alleged negligence. The trial court granted summary judgment in favor of the dealership. The individual appealed.

Florida law imposes strict vicarious liability on the owner of a motor vehicle who voluntarily entrusts that vehicle to an individual whose negligent operation causes damage to another. The federal Graves Amendment provides that an owner of a motor vehicle that rents or leases the vehicle to a person is not liable under a state law imposing vicarious liability on the owner for harm to another person or property that results from the use of that vehicle during the period of the rental or lease if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner.

The Florida appellate court noted that courts have reached different conclusions about whether the Graves Amendment preempts state law vicarious liability for negligent operation of a temporary loaner vehicle that a dealership provides while a car is being serviced. Specifically, it pointed to a conflict between the decisions in Romero v. Fields Motorcars of Florida, Inc., 2022 Fla. App. LEXIS 1395 (Fla. App. January 7, 2022), in which the appellate court concluded that the Graves Amendment did not preempt state law, and Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC, 2022 U.S. App. LEXIS 9957 (11th Cir. (M.D. Fla.) April 13, 2022), in which the Eleventh Circuit concluded that the Graves Amendment did preempt state law. The cases hinged on whether any consideration was received by the dealership in connection with the agreement for the loaner vehicle. In Romero, the driver's vehicle was having warranty work performed on it, and she did not pay any money to the dealership for that service. In Thayer, the dealership received payment from the driver for servicing his vehicle. In this case, the appellate court found the facts to be more similar to Thayer. The dealership argued that it "received consideration for the loaner in the form of the opportunity to service [the lessee's] car, financial benefits which it had received from [the lessee] as payment for the tires and their installation, as well as financial benefits which [it] potentially receives from others for the service work, and [the lessee's] compliance with the terms of the written agreement which he had signed before receiving the loaner. [The dealership] observe[d] that unlike the driver in Romero, [the lessee] signed a written agreement that called itself 'a contract for rental of the Vehicle offered to you' and identified each of these forms of consideration, so the parties had a meeting of the minds that they were entering into a short-term rental contract. Like Thayer, [the appellate court held] that these forms of consideration rendered the contract for the loaner car a 'rental or lease' and, therefore, brought [the dealership] within the Graves Amendment's ambit." Accordingly, the appellate court affirmed the trial court's decision in favor of the dealership.

The appellate court also affirmed on an alternative basis under Section 324.021(9)(c)3 of the Florida Statutes. Section 324.021(9)(c)3 provides that a "motor vehicle dealer, or a motor vehicle dealer's leasing or rental affiliate, that provides a temporary replacement vehicle at no charge or at a reasonable daily charge to a service customer whose vehicle is being held for repair, service, or adjustment by the motor vehicle dealer is immune from any cause of action and is not liable, vicariously or directly, under general law solely by reason of being the owner of the temporary replacement vehicle for harm to persons or property that arises out of the use, or operation, of the temporary replacement vehicle by any person during the period the temporary replacement vehicle has been entrusted to the motor vehicle dealer's service customer if there is no negligence or criminal wrongdoing on the part of the motor vehicle owner, or its leasing or rental affiliate." According to the appellate court, this provision also bars the dealership's vicarious liability for the lessee's alleged negligence. The only reason why Section 324.021(9)(c)3 did not protect the dealership in Romero from liability is because that subsection was adopted after the car crash that had formed the basis for that case.

Amicus Brief(ly): The key takeaway from this Florida case is that a dealership can avoid vicarious liability for a customer's negligent use of a temporary loaner vehicle when the arrangement qualifies as a rental or lease under the Graves Amendment. The key is the language of the loaner/rental agreement. The court treated the loaner vehicle in this case as a rental because the dealership received consideration through the paid service work, the dealership had the opportunity to service the customer's vehicle, and the customer executed a written rental agreement. Those facts led the court to follow Thayer, rather than Romero, where the customer paid nothing for warranty service. The decision also gives dealerships a separate layer of protection under Florida law, as long as the dealership itself engages in no negligence or criminal wrongdoing.

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¹ For the unfamiliar, an “Amicus Brief” is a legal brief submitted by an amicus curiae (friend of the court) in a case where the person or organization (the “friend”) submitting the brief is not a party to the case, but is allowed by the court to file the brief to share information or expertise that bears on the issues in the case.