Supreme Court of Alabama.
*390 Louis E. Braswell of Hand Arendall, L.L.C., Cellphone, for petitioner.
J. Michael Rediker, Thomas L. Krebs, and Michael C. Skotnicki of Ritchie & Rediker, L.L.C., Birmingham; Lange Clark, Birmingham, John Hollis Jackson, Clanton; and Daniel B. Banks, Jr., of Morris, Conchin, Banks & Cooper, P.C., Huntsville, for participants.
On Application For Rehearing
The opinion of 27, 2001, is withdrawn and the following is substituted therefor april.
Speedee money of Alabama, Inc. (“Speedee Cash”), is a defendant within an action pending within the Circuit Court of Chilton County. It petitions for a writ of mandamus directing the Chilton Circuit Court to vacate its order raising the stay of procedures within the action that is pending. We grant Speedee Cash’s petition.
The action pending when you look at the Chilton Circuit Court is styled Taylor et al. v. cash that is speedee of, Inc., et al. (we shall make reference to that action because the “Chilton County action.”) an action that is competing styled payday loans NM Alabama Check Cashers Association et al. v. State Banking Department associated with State of Alabama et al., is pending when you look at the Circuit Court of Montgomery County. (We are going to make reference to that action while the “Montgomery County action.”) The defendants in these competing actions are known as “payday lenders,” and the plaintiffs are individual borrowers although they are more specifically identified later in this opinion. A borrower writes a check to the lender for more than the cash received, and the lender agrees not to deposit the check until some later date, a date up until which the borrower may redeem the check in payday lending. It is referred to as a “deferredpresentment deal.” Perhaps the borrower in reality redeems the check through the loan provider, or the lender presents the check to your debtor’s bank for repayment, the lending company keeps the essential difference between the quantity of the bucks directed at the debtor therefore the quantity of the check. The plaintiff borrowers allege that this distinction retained by the defendant lenders constitutes “interest” attained regarding the deal.
The Prior Filed Litigation (The Montgomery County Action)
On August 5, 1998, the Alabama Check Cashers Association as well as other lenders that are payday the Montgomery County action, resistant to the State Banking Department as well as other defendants. When you look at the Montgomery County action, the payday loan providers seek a judgment declaring that the Alabama Small Loan Act will not affect the operations for the payday lenders. Lenders also look for injunctive relief to avoid *391 the Banking Department from needing lenders either to have a “smallloan license” or even stop and desist from their operations.
On October 9, 1998, after negotiations and mediation, the trial court into the Montgomery County action joined a permission order, which encompassed an understanding of this payday lenders additionally the Banking Department up to a stipulated purchase for an injunction. In return for lenders’ contract to stick to the conditions of the purchase regulating “deferred-presentment transactions” (for example., payday advances), the Banking Department consented never to look for to enjoin lenders’ company operations through the pendency for the Montgomery County action.
On November 23, 1998, a movement to intervene both as of right and permissively had been filed in the Montgomery County action with respect to a purported course of borrowers who’d acquired pay day loans from some of the different lenders tangled up in that action. The movement defined this purported course as “a course of borrowers . whom obtained loans or extensions of credit or credit transactions within the kinds herein-above described from any loan providers and users of the financial institution Defendant Class in Alabama within the six years next preceding the filing with this problem in intervention.” The defendants towards the intervenors’ claims into the Montgomery County action included Speedee money, along with other lenders that are payday the Alabama Check Cashers Association.
The intervenors within the Montgomery County action objected towards the entry for the consent purchase and reported of so-called violations associated with the Alabama Small Loan Act and, in regards to their payday advances, made claims unconscionability that is alleging unjust enrichment, and cash had and received. On March 1, 1999, the test court when you look at the Montgomery County action partially granted the intervenors’ movement, “when it comes to purpose that is limited of the statement of liberties regarding the appropriate problem of the applicability associated with Alabama Small Loan Act to [Plaintiffs’] check cashing deals as outlined into the [Plaintiffs’] grievance, as amended.” The test court further ordered: “all the complaints in intervention are otherwise rejected. This order doesn’t preclude the filing of separate matches.” Thereafter, the intervenors filed a movement for class official official official certification pursuant to Rule 23(b)(1) and (b)(2), Ala. R. Civ. P. The test court into the Montgomery County action have not ruled about this movement.
This Litigation (The Chilton County Action)
May 17, 1999, right after the trial court within the Montgomery County action had partially issued the movement to intervene, James E. Taylor among others filed the Chilton County action; they filed it as a putative course action. The called defendants had been Speedee Cash plus some 500 fictitiously known as parties purportedly involved with the company of payday financing. The Taylor plaintiffs asserted numerous violations associated with Alabama Small Loan Act making claims alleging unjust enrichment, unconscionability, the tort of outrage, and cash had and received, all arising away from “payday” loans. When it comes to Taylor plaintiffs to recuperate for the alleged violations regarding the Alabama Small Loan Act, the trial court will have to hold that that Act relates to the payday lenders. The Taylor plaintiffs desired course official certification on the part of a course of people that has acquired loans that are such the six years preceding the filing for the problem. Therefore, if certified by the Chilton Circuit Court, this course will overlap notably using the course certification that is seeking the Montgomery County action.