Ohio Neighborhood Fin., Inc. v. Scott (Slip Opinion) , 139 Ohio St. 3d 536 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Ohio Neighborhood Fin., Inc. v. Scott, Slip Opinion No. 2014-Ohio-2440.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-2440OHIO NEIGHBORHOOD FINANCE, INC., D.B.A. CASHLAND, APPELLANT, v.
SCOTT, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Ohio Neighborhood Fin., Inc. v. Scott,
Slip Opinion No. 2014-Ohio-2440.]
Mortgage Loan Act—R.C. 1321.51 to 1321.60—Short-Term Lender Act—R.C.
1321-35 to 1321.48—Payday-lending loans—An “interest-bearing loan,”
as defined in R.C. 1321.51(F), may include a loan requiring repayment in
a single installment—Lenders registered under the Mortgage Loan Act,
R.C. 1321.51 to 1321.60, may make single-installment, interest-bearing
loans—The Short Term Loan Act, R.C. 1321.35 to 1321.48, does not limit
the authority of lenders registered under the Mortgage Loan Act to make
any loans authorized by the Mortgage Loan Act.
(No. 2013-0103—Submitted December 10, 2013—Decided June 11, 2014.)
APPEAL from the Court of Appeals for Lorain County, No. 11CA010030,
2012-Ohio-5566.
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SUPREME COURT OF OHIO
SYLLABUS OF THE COURT
1. An “interest-bearing loan,” as defined in R.C. 1321.51(F), may include a loan
requiring repayment in a single installment.
2. Lenders registered under the Mortgage Loan Act, R.C. 1321.51 to 1321.60,
may make single-installment, interest-bearing loans.
3. The Short-Term Lender Act, R.C. 1321.35 to 1321.48, does not limit the
authority of lenders registered under the Mortgage Loan Act to make any
loans authorized by the Mortgage Loan Act.
______________________
FRENCH, J.
{¶ 1} This appeal concerns the continued viability of payday lending in
Ohio and raises questions regarding how payday loans fit within Ohio’s current
statutory lending framework.
Introduction
{¶ 2} Payday loans are typically small, unsecured, short-term loans, often
repayable on the borrower’s next payday. Ohio Legislative Service Commission,
Payday Lending in Ohio, Members Only Brief, Vol. 130, Issue 1 (Jan. 23, 2013),
at 1, http://www.lsc.state.oh.us/membersonly/130paydaylending.pdf (accessed
June 3, 2014) (“Payday Lending”). The borrower generally writes the lender a
check for the full loan amount plus all applicable fees and interest, postdated to
the borrower’s next payday, or authorizes the lender to electronically debit that
amount from the borrower’s bank account on the borrower’s next payday. Id.; In
re Meadows, 396 B.R. 485, 498 (BAP 6th Cir.2008), fn. 8 (Gregg, J., concurring),
quoting Easha Anand, Payday Lenders Back Measures to Unwind State
Restrictions, Wall Street Journal (Oct. 28, 2008), A6.
{¶ 3} To be sure, payday lending is controversial. Proponents argue that
payday loans are necessary and less costly than other available alternatives for
low-income individuals to cover unexpected expenses. Opponents argue that the
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high costs of payday loans, combined with their short terms, trap borrowers in a
cycle of debt, with borrowers often resorting to additional loans to pay off prior
loans. Id. at 1-2.
{¶ 4} R.C. Chapter 1321 governs all manner of loans in Ohio; it includes
the Small Loan Act, R.C. 1321.01 to 1321.19, the Ohio Mortgage Loan Act
(“MLA”), R.C. 1321.51 to 1321.60, and the Short-Term Lender Act (“STLA”),
R.C. 1321.35 to 1321.48. We are concerned here primarily with the MLA and the
STLA. In this appeal, we first consider whether the plain language of the MLA,
and particularly the definition of “interest-bearing loan” in R.C. 1321.51(F),
precludes the issuance of single-installment loans. Next, we consider whether the
more recently enacted STLA prohibits registered lenders under the MLA from
making payday-style loans even if the plain language of the MLA otherwise
authorizes those loans.
{¶ 5} For the reasons we detail below, based on the unambiguous
language of R.C. 1321.51(F) and 1321.57(A), the longstanding practice of the
Ohio Department of Commerce, Division of Financial Institutions, to allow
single-installment loans under the MLA, and the absence of any language in the
STLA that limits the authority of MLA lenders, we hold that an “interest-bearing
loan” under the MLA may require repayment in a single installment and that
neither the MLA nor the STLA prohibits registered MLA lenders from making
single-installment, interest-bearing loans.
Relevant Background
Mortgage Loan Act
{¶ 6} The MLA was originally enacted in 1965 and, at that time, applied
only to lenders who took second mortgages as security for loans. Am.Sub.H.B.
No. 403, 131 Ohio Laws, Part I, 439, and Part II, 1804. Now, however, the MLA
extends far beyond its initial reach. A registered MLA lender may now make
“unsecured loans, loans secured by a mortgage on a borrower’s real estate which
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is a first lien or other than a first lien on the real estate, loans secured by other
than real estate, and loans secured by any combination of mortgages and security
interests, on terms and conditions provided by [the MLA].” R.C. 1321.52(C).
With the exception of those entities exempted by R.C. 1321.53(D), a lender that
wants to make loans under the MLA must register with the Ohio Department of
Commerce, Division of Financial Institutions. R.C. 1321.52(A)(1).
{¶ 7} MLA loans may be either interest-bearing or precomputed. R.C.
1321.57(A). An “interest-bearing loan” is a loan “in which the debt is expressed
as the principal amount and interest is computed, charged, and collected on
unpaid principal balances outstanding from time to time.” R.C. 1321.51(F).
Pursuant to R.C. 1321.57(C)(1)(a), interest on an interest-bearing loan is to be
computed on the unpaid principal outstanding from time to time, for the time
outstanding. A “precomputed loan” is “a loan in which the debt is a sum
comprising the principal amount and the amount of interest computed in advance
on the assumption that all scheduled payments will be made when due.” R.C.
1321.51(G). Pursuant to R.C. 1321.57(D)(1), a precomputed loan must be
repayable in monthly installments, but there is no equivalent, express requirement
for interest-bearing loans.
{¶ 8} The MLA does not restrict the amount that can be lent or the
duration of the loan. R.C. 1321.57(A) provides that notwithstanding any other
provisions of the Revised Code, an MLA lender may charge interest not
exceeding 21 percent per year on the unpaid principal balance, but R.C. 1321.571
authorizes an interest rate not exceeding 25 percent per year “[a]s an alternative”
to the rate permitted by R.C. 1321.57(A).
Check-Cashing Lender Law
{¶ 9} In 1995, the General Assembly enacted the Check-Cashing Lender
Act, former R.C. 1315.35 to 1315.44, Am.H.B. No. 313, 146 Ohio Laws, Part II,
3786-3795, which authorized check-cashing businesses, regulated under R.C.
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Chapter 1315, to obtain a separate license entitling them to make small loans,
including payday loans. Am.H.B. No. 313, 146 Ohio Laws, Part II, 3786. The
Check-Cashing Lender Law originally authorized loans for terms of less than six
months and in amounts up to $500, id., but that limit was subsequently increased
to $800, Sub.H.B. No. 401, 150 Ohio Laws, Part IV, 6318. The law allowed
check-cashing lenders to charge a loan-origination fee, former R.C. 1315.40(A),
146 Ohio Laws, Part II, at 3790, and interest of 5 percent per month or fraction of
a month on the unpaid principal balance, former R.C. 1315.39(B), id. The
presence of payday lenders in Ohio expanded rapidly under the Check-Cashing
Lender Law; by 2008, the division of financial institutions had issued over 1,500
check-cashing loan licenses. Payday Lending at 2. The General Assembly
repealed the Check-Cashing Lender Law in 2008 and enacted, in its place, the
STLA. 2008 Sub.H.B. No. 545 (“H.B. 545”).
Short-Term Lender Act
{¶ 10} The STLA reenacted the bulk of the repealed Check-Cashing
Lender Law, but with a number of substantive changes addressing perceived
dangers associated with payday lending. Ohio Legislative Service Commission,
Bill Analysis, Sub.H.B. 545, http://www.legislature.state.oh.us/analysis.cfm?
ID=127_HB_545&ACT=As%20Enrolled&hf=analyses127/08-hb545-127.htm
(accessed June 3, 2014). The STLA reduced the maximum loan amount to $500,
imposed a minimum loan term of 31 days, and drastically reduced the interest a
lender may charge. R.C. 1321.39(A) and (B); R.C. 1321.40(A). Under the
STLA, interest is limited to an annual percentage rate (“APR”) of 28 percent, and
computation of the APR includes not only traditional interest but all fees and
charges applicable to a loan. R.C. 1321.40(A) and 1321.35(D). Section 4(A) of
H.B. 545 provided that all current licenses under the Check-Cashing Lender Act
would remain in effect, unless suspended or revoked, until the license would have
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been subject to renewal under the Check-Cashing Lender Law and that those
licensees would be recognized as licensees under the STLA.
Referendum
{¶ 11} A referendum challenging the repeal of the Check-Cashing Lender
Law was on the ballot as Issue 5 in Ohio’s November 2008 general election.
Issue 5 asked, “Shall Section 3 of H.B. 545 [repealing the Check-Cashing Lender
Law] be approved?” Ohio Secretary of State, Ohio Issues Report: State Issue
Ballot Information for the November 4, 2008 General Election, at 17, http://
www.sos.state.oh.us/sos/upload/publications/election/Issues_08.pdf (accessed
June 3, 2014). Although the explanation of the referendum informed voters that
approval of Section 3 would subject all short-term lenders, including check-
cashing lenders, to the requirements of the STLA, Issue 5 concerned only the
repeal of the Check-Cashing Lender Law and not the enactment of the STLA. Id.
at 17. Amici in support of appellee, Rodney Scott, maintain that the payday-
lending industry vigorously opposed the repeal and encouraged voters to reject
Issue 5. Appellant, Ohio Neighborhood Finance, Inc., d.b.a. Cashland, admits
that lenders opposed the repeal because they stood to lose significant revenue if it
took effect. Nevertheless, despite efforts to defeat Issue 5, a majority of the
electorate approved Issue 5 and the repeal of the Check-Cashing Lender Law.
Appellant states that 43 Cashland lending locations in Ohio were closed as a
direct result of the repeal.
{¶ 12} Despite the repeal of the Check-Cashing Lender Law and the
enactment of the STLA, there are no lenders currently registered under the STLA.
Rather, lenders making payday loans in Ohio are primarily registered under either
the MLA or under the Small Loan Act. Payday Lending at 3.
Facts and procedural history
{¶ 13} Appellant was previously a licensed lender under the Check-
Cashing Lender Law. Appellant registered as a lender under the MLA in August
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2008, after the passage of H.B. 545. Appellant is not registered under the STLA.
Appellant admits that the loan product it offers now, purportedly under the MLA,
is similar to the loan product it previously offered under the Check-Cashing
Lender Law, but it contends that the fees it is able to collect on the MLA product
are less than those it collected under the Check-Cashing Lender Law.
{¶ 14} On December 5, 2008, appellant and appellee executed a customer
agreement for a single-installment, $500 loan “governed by the laws of the State
of Ohio, including the Mortgage Loan Act.” The customer agreement established
the following payment schedule: “One payment in the amount of $545.16 due on
12/19/08 (Payment Date).” The payment amount included a $10 credit-
investigation fee and a $30 loan-origination fee. Appellee agreed to repay the
principal amount “plus interest at a rate of 25% per annum on the principal
outstanding for the time outstanding from the date of this Customer Agreement
until paid in full.” Had appellee repaid the loan on time, he would have paid
$5.16 in interest. The federal truth-in-lending disclosure in the customer
agreement informed appellee that the APR (“[t]he Cost of your credit as a yearly
rate”) of his loan was 235.48 percent. As used in this disclosure, the APR
includes not only interest but also the other finance charges associated with the
loan. Smith v. Anderson, 801 F.2d 661, 663 (4th Cir.1986), citing 15 U.S.C.
1605-1606. The customer agreement permitted appellee to prepay his loan
without penalty and thereby reduce the amount of interest he would owe. It also
offered appellee the option of an extended payment plan.
{¶ 15} Appellee defaulted on his loan by not making any payment by
December 19, 2008. Appellant filed this action in the Elyria Municipal Court to
recover on its loan to appellee.
{¶ 16} In its complaint, appellant sought to recover the unpaid principal
balance on appellee’s loan, along with interest and fees permitted by the MLA,
including a default charge and a returned-check charge. When appellee did not
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respond, appellant moved for a default judgment of $570.16, plus interest of 25
percent per annum from December 5, 2008. Appellee had paid a total of $35
toward his debt before appellant moved for default judgment.
{¶ 17} A magistrate initially recommended judgment for appellant in the
amount of $545.16 with 5 percent interest from December 19, 2008. After
appellant objected, the trial court referred the case back to the magistrate for an
evidentiary hearing and a determination of whether the MLA applied to the loan.
The magistrate reasoned that appellant was using the MLA as a pretext to evade
the limitations of the STLA and determined that appellee’s loan was
impermissible under the MLA and should be governed by the STLA. The
magistrate held that appellant was unauthorized to make any short-term loan in
Ohio because appellant was not registered under the STLA. The magistrate
further held that even if the MLA applied, appellant’s loan to appellee was
usurious, in part because it provided for excessive interest. The magistrate
recommended judgment for appellant in the amount of $465 ($500 minus Scott’s
$35 payment), plus interest at the statutory rate of 8 percent per year from
December 5, 2008. The trial court adopted the magistrate’s decision, over
appellant’s objections.
{¶ 18} A split panel of the Ninth District Court of Appeals affirmed the
municipal court’s judgment. 9th Dist. Lorain No. 11CA010030, 2012-Ohio-5566.
The majority held that the MLA does not authorize single-installment loans and
that by enacting the STLA, the General Assembly intended to prohibit all loans of
short duration outside the confines of that act. Id. at ¶ 12. Judge Dickinson
dissented, concluding that the single-installment loan here satisfied the MLA’s
definition of “interest-bearing loan” and holding that the General Assembly’s
supposed intent in enacting the STLA was insufficient to override the MLA’s
clear authorization of this type of loan. Id. at ¶ 19, 24. Neither the majority nor
the dissent addressed the validity of a 25-percent interest rate under the MLA.
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{¶ 19} This court accepted appellant’s discretionary appeal. 136 Ohio
St.3d 1505, 2013-Ohio-4653, 995 N.E.2d 1209. Although appellee has not
appeared before this court, numerous amici have ably presented argument in
support of the lower courts’ judgments.
Questions presented
{¶ 20} Appellant asks this court to decide whether the MLA permits
single-installment, interest-bearing loans and, if so, whether the STLA prohibits
MLA registrants from making single-installment loans of short duration.
Carefully bearing in mind that we must apply statutory language as enacted by the
General Assembly and that we are prohibited from acting in a legislative capacity,
we answer the first question in the affirmative and the second question in the
negative.
Analysis
{¶ 21} We first consider whether the MLA permits single-installment
loans. The MLA permits both “interest-bearing” and “precomputed” loans,
subject to different requirements as set forth in R.C. 1321.57. Appellant does not
contend that the MLA authorizes single-installment precomputed loans; R.C.
1321.57(D)(1) requires that precomputed loans are payable in “monthly
installments of principal and interest combined,” signifying the necessity of
multiple installments. (Emphasis added.) R.C. 1321.57(C) does not similarly
require that an interest-bearing loan be repayable in multiple installments.
Nevertheless, the appellate-court majority found that an interest-bearing loan, by
definition, cannot include a single-installment loan. Thus, central to our
resolution of this question is the statutory definition of “interest-bearing loan” as
“a loan in which the debt is expressed as the principal amount and interest is
computed, charged, and collected on unpaid principal balances outstanding from
time to time.” R.C. 1321.51(F).
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{¶ 22} Our paramount concern in construing a statute is legislative intent.
State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815
N.E.2d 1107, ¶ 21. To discern legislative intent, we first consider the statutory
language, reading all words and phrases in context and in accordance with rules of
grammar and common usage. Id.; R.C. 1.42. We read and understand statutes
“ ‘ “according to the natural and most obvious import of the language, without
resorting to subtle and forced constructions.” ’ ” Lancaster v. Fairfield Cty.
Budget Comm., 83 Ohio St.3d 242, 244, 699 N.E.2d 473 (1998), quoting Slingluff
v. Weaver, 66 Ohio St. 621, 627, 64 N.E. 574 (1902), quoting McCluskey v.
Cromwell, 11 N.Y. 593, 1854 WL 6033, at *5 (1854).
{¶ 23} When statutory language is unambiguous, we will apply it as
written, without resort to additional rules of statutory interpretation or
considerations of public policy. Zumwalde v. Madeira & Indian Hill Joint Fire
Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, ¶ 23-24, 26. We
may employ rules for construing ambiguous language only when a definitive
meaning proves elusive, despite a thorough and objective examination of the
statutory language. State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690, ¶ 11. “Otherwise, allegations of ambiguity become self-fulfilling.”
Id.{¶ 24} The appellate-court majority found the statutory definition of
“interest-bearing loan”—and specifically the requirement that “interest is
computed, charged, and collected on unpaid principal balances outstanding from
time to time”—ambiguous:
According to [appellant], “from time to time” modifies “unpaid
principal balances outstanding[,]” and, therefore, a loan could be
interest-bearing even if it was collected in a single installment.
However, “from time to time” could just as readily modify
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“computed, charged, and collected[,]” which would require interest
to be collected in multiple installments. See R.C. 1321.51(F). In
other words, the statute is ambiguous.
2012-Ohio-5566, at ¶ 8.
{¶ 25} In determining whether a statute is ambiguous, we objectively and
thoroughly examine the statute, consider each provision in context, and apply
ordinary rules of grammar. Porterfield at ¶ 11, citing Westfield Ins. Co. v.
Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11; Hedges v.
Nationwide Mut. Ins. Co., 109 Ohio St.3d 70, 2006-Ohio-1926, 846 N.E.2d 16,
¶ 24. When we do that here, we discern no ambiguity in R.C. 1321.51(F).
{¶ 26} It is an accepted rule of construction that in the absence of an
expressed contrary intention, referential and qualifying words and phrases refer
solely to the last antecedent. Hedges at ¶ 24. Applying that rule, the phrase
“from time to time” is an adverbial phrase that modifies the antecedent adjective
“outstanding,” which in turn modifies “unpaid principal balances.” The appellate-
court majority states that the phrase “from time to time” may also be read as
modifying the earlier verbs “computed, charged, and collected,” and, therefore
requires that a lender collect interest at different times and thus in multiple
installments. That reading, however, not only imposes a forced construction on
the statute, but also ignores this accepted rule of construction. Had the General
Assembly intended to require multiple installments for interest-bearing loans, it
could have rearranged the statutory language in R.C. 1321.51(F) to provide that
“interest is computed, charged, and collected from time to time on unpaid
principal balances outstanding,” but that is not how the enacted language is
organized, and we may not rewrite the statute in that manner. The General
Assembly could also have included a separate provision in the MLA that
specifically requires that interest-bearing loans be repayable in multiple
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installments, just as it did with precomputed loans by requiring monthly
installments. See R.C. 1321.57(D)(1). Again, it did not do so. Reading the
statute according to the natural and most obvious import of the statutory language,
we conclude that R.C. 1321.51(F) is not ambiguous, that “from time to time”
modifies “outstanding,” and that an “interest-bearing loan” need not require
multiple installments.
{¶ 27} Appellant’s loan to appellee satisfies the definition of an interest-
bearing loan under R.C. 1321.51(F). The customer agreement stated as follows:
You promise to pay us $500.00 (the Principal Amount of this loan)
plus interest at a rate of 25% per annum on the principal
outstanding for the time outstanding from the date of this Customer
Agreement until paid in full. Interest shall be computed daily upon
the principal balance outstanding by using the simple interest
method, assuming a 365-day year.
The agreement expresses the debt as the principal amount, and the interest is
computed based upon the principal balance outstanding daily, in accordance with
the definition of “interest-bearing loan” in R.C. 1321.51(F). Likewise, the
computation of interest is consistent with the requirements applicable to interest-
bearing MLA loans under R.C. 1321.57(C).
{¶ 28} The second question we must decide is whether the STLA prohibits
MLA registrants from making payday-style loans even if those loans are
otherwise permissible under the MLA. This issue arises because, despite its
determination that the MLA does not apply to single-installment loans, the court
of appeals’ majority went on to hold that the General Assembly intended, by its
repeal of the Check-Cashing Lender Law and its enactment of the STLA, to
prohibit any two-week loan. 2012-Ohio-5566, at ¶ 12. The majority reasoned
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that allowing MLA registrants to make two-week, single-installment loans would
“nullify the very legislation that is designed to regulate payday-type loans.” Id. at
¶ 11.
{¶ 29} The arguments made by the amici in support of appellee concern
this second question. Amici urge this court to hold that the STLA is the exclusive
authority governing payday loans in Ohio and that regardless of how lenders label
them, payday loans must comply with the STLA. Thus, even if the MLA
generally permits single-installment, interest-bearing loans, amici for appellee
maintain that payday loans—short-term, unsecured, single-installment consumer
loans—cannot be made under the MLA because they are specifically and
exclusively regulated under the STLA.
{¶ 30} The STLA imposes duties upon a person licensed and “any person
required to be licensed” under the act, and it prohibits licensees from engaging in
any device or subterfuge to avoid the requirements of the act. R.C. 1321.47(A);
R.C. 1321.41(J). Pursuant to R.C. 1321.36(A), no person may make a short-term
loan to an Ohio borrower without first obtaining an STLA license, but R.C.
1321.35(A) defines “short-term loan” narrowly as a loan made pursuant to the
STLA. Thus, there is no language in the STLA that requires a lender to be
licensed under that act before making a payday-style loan. Had the General
Assembly intended the STLA to be the sole authority for issuing payday-style
loans, it could have defined “short-term loan” more broadly.
{¶ 31} In an opinion issued shortly after the enactment of the STLA, the
Ohio Attorney General recognized that the fact that R.C. 1321.35 defines a
“short-term loan” as a loan under R.C. 1321.35 to 1321.48 shows that the
licensing requirement in R.C. 1321.36(A) applies only to those lenders who make
loans under that act and not to all lenders of loans of short duration. 2008 Ohio
Atty.Gen.Ops. No. 2008-036, at *3. In that opinion, the Attorney General was
answering a question posed by the Department of Commerce regarding the ability
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of a person licensed under the Check-Cashing Lender Law to make loans pursuant
to that law while also holding an STLA license, prior to the 2008 referendum.
But the opinion is not as narrow as the question presented. By stating that a
person who “has a valid license to make another type of loan” may make a loan in
conformance with the requirements of that license, free from the limitations of the
STLA, id. at *3, fn. 5, the Attorney General recognized the independence of the
various lending acts.
{¶ 32} Appellant is not licensed under the STLA and is, therefore, not
entitled to make short-term loans pursuant to the STLA. R.C. 1321.35(A) and
1321.36(A). But the loan here was not an STLA loan; it is undisputed that the
STLA would not permit the subject loan, because its terms contravene the
STLA’s requirements regarding the loan term, interest, and fees. Because
appellant did not issue a “loan made pursuant to sections 1321.35 to 1321.48 of
the Revised Code,” the loan does not qualify as a “short-term loan” subject to the
requirements of the STLA.
{¶ 33} Nothing in the STLA limits the authority of MLA registrants to
make MLA loans. As the Attorney General recognized in 2008 Ohio
Atty.Gen.Ops. No. 2008-036, at *4, H.B. 545 itself, at least implicitly, recognized
the existence of an alternative statutory authority available to lenders previously
licensed under the Check-Cashing Lender Law. See H.B. 545, Section 4(B)
(requiring a licensee under the Check-Cashing Lender Law who applied for a
license under the Small Loan Act for the 2008 licensing period to pay only half
the license fee required by R.C. 1321.03).
{¶ 34} In an attempt to paint the STLA as the exclusive statutory authority
for payday-type loans, amici in support of appellee argue that reading the MLA in
pari materia with the STLA clarifies the General Assembly’s intent. In the
absence of statutory ambiguity, however, we may not resort to rules of statutory
interpretation. See State ex rel. Wolfe v. Delaware Cty. Bd. of Elections, 88 Ohio
14January Term, 2014
St.3d 182, 186, 724 N.E.2d 771 (2000) (no need to apply interpretive rules to
unambiguous statutory language); State v. Krutz, 28 Ohio St.3d 36, 37-38, 502
N.E.2d 210 (1986) (in pari materia rule applies only when a statute is ambiguous
or the significance of its terms is doubtful).
{¶ 35} Beyond the absence of language in the STLA restricting MLA
lenders in any way, R.C. 1321.57(A) authorizes MLA registrants to contract for
and receive interest on MLA loans “[n]otwithstanding any other provisions of the
Revised Code.” (Emphasis added.) “Notwithstanding” indicates the General
Assembly’s intention that R.C. 1321.57(A) takes precedence over any contrary
statute purporting to limit a registrant’s authority. See State ex rel. Carmean v.
Hardin Cty. Bd. of Edn., 170 Ohio St. 415, 422, 165 N.E.2d 918 (1960); Cisneros
v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993)
(“a ‘notwithstanding’ clause clearly signals the drafter’s intention that the
provisions of the ‘notwithstanding’ section override conflicting provisions of any
other section”). The precedence afforded a “notwithstanding” clause is effective
regardless of whether that clause predates the conflicting provision. See State ex
rel. PIA Psych. Hosps., Inc. v. Ohio Certificate of Need Rev. Bd., 60 Ohio St.3d
11, 17-18, 573 N.E.3d 14 (1991) (holding that a later-adopted bill did nothing to
change the General Assembly’s intent that certificate-of-need applications were
governed by an earlier bill, which included a “notwithstanding” provision).
{¶ 36} The court of appeals’ supposition concerning the legislative
intention behind the STLA, emphasized here by amici in support of appellee,
cannot override the unambiguous statutory language of R.C. 1321.57(A). Indeed,
the legislature, not the courts, should resolve any incongruity between the
legislature’s intent and the statutory language enacted. State ex rel. Celebrezze v.
Allen Cty. Bd. of Cty. Commrs., 32 Ohio St.3d 24, 28, 512 N.E.2d 332 (1987).
The question is not what the General Assembly intended to enact but the meaning
of that which it did enact. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969,
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804 N.E.2d 471, ¶ 12, quoting Slingluff, 66 Ohio St. 621, 64 N.E. 574, at
paragraph two of the syllabus.
{¶ 37} In over five years since the enactment of the STLA, the General
Assembly has not taken any action to preclude the practice of payday-style
lending under the other lending acts in effect prior to the STLA. As we have
previously noted, legislative inaction in the face of knowledge of longstanding
statutory interpretation may suggest a legislative intent to retain existing law.
Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d
1061, ¶ 26. Here, the General Assembly’s acquiescence to the status quo
contradicts the court of appeals’ determination that the General Assembly
intended the STLA to be the exclusive legislation governing the type of short-
term, single-installment loans at issue here.
Conclusion
{¶ 38} It is not the role of the courts to establish legislative policy or to
second-guess policy choices the General Assembly makes. Kaminski v. Metal &
Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 61. If
the General Assembly intended to preclude payday-style lending of any type
except according to the requirements of the STLA, our determination that the
legislation enacted in 2008 did not accomplish that intent will permit the General
Assembly to make necessary amendments to accomplish that goal now. But the
position that amici in support of appellee urge upon this court is fraught with
legislative policy decisions, and to adopt that position would exceed the bounds of
this court’s authority.
{¶ 39} In conclusion, we hold that an “interest-bearing loan,” as defined in
R.C. 1321.51(F), may include a loan requiring repayment in a single installment.
Lenders registered under the MLA may make single-installment, interest-bearing
loans, and the STLA does not limit the authority of lenders registered under the
MLA to make any loans authorized by the MLA. The unambiguous language of
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the MLA, consistent with the reasonable administrative construction of R.C.
1321.51(F), compels the conclusion that appellant’s loan to appellee was an
interest-bearing loan as defined under the MLA.
{¶ 40} As a final matter, we note that we do not decide whether the loan
described in the customer agreement complies in all respects with the MLA, but
only whether appellant, as an MLA registrant, was entitled to make MLA-
compliant loans unaffected by the STLA. For example, we do not decide whether
the customer agreement’s requirement of interest at 25 percent per annum,
pursuant to R.C. 1321.571, was permitted by the MLA, or whether the 21-
percent-interest cap in R.C. 1321.57(A) applies. The court of appeals did not
address that issue, and appellant’s propositions of law do not implicate it here.
{¶ 41} For all these reasons, we reverse the judgment of the Ninth District
Court of Appeals and remand this matter to the trial court for further proceedings
consistent with this opinion.
Judgment reversed
and cause remanded.
O’DONNELL, PFEIFER, LANZINGER, KENNEDY, and O’NEILL, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
____________________
PFEIFER, J., concurring.
{¶ 42} I concur in the majority opinion. I write separately because
something about the case doesn’t seem right.
{¶ 43} There was great angst in the air. Payday lending was a scourge. It
had to be eliminated or at least controlled. So the General Assembly enacted a
bill, the Short-Term Lender Act (“STLA”), R.C. 1321.35 to 1321.48, to regulate
short-term, or payday, loans. And then a funny thing happened: nothing. It was
as if the STLA did not exist. Not a single lender in Ohio is subject to the law.
How is this possible? How can the General Assembly set out to regulate a
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controversial industry and achieve absolutely nothing? Were the lobbyists
smarter than the legislators? Did the legislative leaders realize that the bill was
smoke and mirrors and would accomplish nothing?
____________________
Zeiger, Tigges & Little L.L.P., John W. Zeiger, and Stuart G. Parsell, for
appellant.
Squire Sanders (US), L.L.P., Pierre H. Bergeron, and Colter L. Paulson,
urging reversal for amicus curiae Ohio Chamber of Commerce.
Vorys, Sater, Seymour & Pease, L.L.P., and Frederick E. Mills, urging
reversal for amicus curiae Ohio Council of Retail Merchants.
Sara Bruce, urging reversal for amicus curiae Ohio Automobile Dealers
Association.
The Mirman Law Firm, L.L.C., and Joel H. Mirman, urging reversal for
amici curiae Norfleet Rives and Daniel Oglevee.
Dreher Tomkies Scheiderer, L.L.P., Darrell L. Dreher, and Elizabeth L.
Anstaett, urging reversal for amicus curiae Richard F. Keck.
Legal Aid Society of Cleveland, Julie K. Robie, Katherine B.
Hollingsworth, and Thomas Mlakar; Ohio Poverty Law Center, L.L.C., and Linda
Cook; Southeastern Ohio Legal Services and Melissa Benson; Legal Aid Society
of Southwest Ohio, L.L.C., and Nicholas DiNardo; Advocates for Basic Legal
Equality, Inc., and Stanley A. Hirtle; and Legal Aid Society of Columbus and
Scott Torguson, urging affirmance for amici curiae Legal Aid Society of
Cleveland, Legal Aid Society of Columbus, Community Legal Aid Services, Inc.,
Southeastern Ohio Legal Services, Legal Aid Society of Southwest Ohio, L.L.C.,
Advocates for Basic Legal Equality, Inc., Legal Aid of Western Ohio, Inc., Ohio
Poverty Law Center, L.L.C., ProSeniors, Inc., Coalition on Homelessness and
Housing in Ohio, and Catholic Conference of Ohio.
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January Term, 2014
Cannizzaro, Bridges, Jillisky & Streng, L.L.C., and Amy E. Gullifer,
urging affirmance for amici curiae Center for Responsible Lending and National
Consumer Law Center.
_________________________
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