Book Description

Amicus Brief submitted to the California Supreme Court in De La Torre v CashCall Inc., 5 Cal.5th 966 (Cal. 2018): The Ninth Circuit has asked this Court whether the interest rate on consumer loans of $2,500 or more can render the loans unconscionable under section 22302 of the California Financial Code. The answer - with the proviso that any unconscionability determination must be made in the context of the terms and circumstances of the loans in question - is yes. . . .When the legislature removed the interest rate cap on loans above $2,500, it did not impliedly repeal the historic principle that courts may intervene where a contract or provision is unduly oppressive or unconscionable. Rather, the legislature recognized that the statute's unconscionability provision would remain a safeguard against the excesses of an unfettered free market. The doctrine of unconscionability, a “principle of equity applicable to all contracts generally,” applies to all provisions of all contracts. (See Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 820.) A loan's interest rate, whether governed by a statutory rate cap or not, is no exception. The incorporation of Civil Code section 1670.5 into Financial Code section 22302 evinces a clear legislative intent that courts should police the consumer credit market for unduly oppressive contract terms. The legislative mandate of Finance Code section 22302 is clear: where the market for consumer loans fails to produce socially tolerable terms, the courts may step in. The attributes of the loans at issue in this case - their relatively large size, the length of the repayment period and, notably, their high interest rates - provide ample foundation for a finding that the loans are in fact unconscionable. For the current proceeding, however, it is enough to say this: The interest rate on consumer loans of $2,500 or more can - in the context of the other terms and circumstances of the loans - render the loans unconscionable under section 22302 of the California Financial Code.