Daye v. Community Financial Loan Service Centers, LLC
This text of 280 F. Supp. 3d 1222 (Daye v. Community Financial Loan Service Centers, LLC) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
James 0. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on: (i) the Plaintiffs Requested Findings of Fact and Conclusions of Law, filed May 24, 2017 (Dóc. 158)(“Daye’s FOFs”); (ii) the Defendant’s Proposed Findings of Fact and Conclusions of Law, filed May 24, 2017 (Doc. 156)(“Speedy’s FOFs”); and (iii) the Opposed Motion to Strike, Witnesses, filed May 13, 2016 (Doc. 95)(“Motion to Strike”).1 The Court held a bench trial on March 15, 2Ó17. See Transcript of Bench Trial, held March 15, 2017 (“Tr.”).2 The primary issues are: (i) how much should the' Plaintiffs recover on account of the misrepresentations of Defendant Community Financial Loan Service Centers, LLC, doing business as Speedy Loan, regarding the cost of its loans; and (ii) how much should the Plaintiffs recover on account of Speedy Loan’s violations of New Mexico law regarding payday loans. The Court determines that Speedy Loan’s misrepresentations did not damage the Plaintiffs, because those misrepresentations made Speedy Loan’s loans appear more expensive than they actually were. Consequently, the named plaintiff can recover statutory damages and attorney’s fees, but the unnamed plaintiffs can recover nothing. The Court also determines that Speedy Loan must return the interest and fees it collected from the Plaintiffs to the extent that it collected more than the New Mexico Small Loan Act, N.M. Stat. Ann. §§ 58-15-1 to -39, permits.
FINDINGS OF FACT
The Plaintiffs and Speedy Loan have stipulated to some facts. See Pretrial Order ¶¶ 1-53, at 8-19, filed February 15, 2017 (Doc. 144)(“Pretrial Order”). The proposed findings of facts and conclusions of law submitted by the parties agree on other facts. See, e.g., Daye’s FOFs ¶ 9, at 2 (alleging that Speedy Loan made 31,082 loans during the time period covered by Daye’s suit); Speedy’s FOFs ¶ 9, at 2 (same).3 The Court has carefully considered those stipulations and proposed findings, and it sets forth its findings (“FOFs”) below.4
1. Speedy Loan is a Delaware LLC. See Pretrial Order ¶2, at 8 (stipulated fact).
2. Speedy Loan is a profitable business. See Pretrial Order ¶ 4, at 8 (stipulated fact).
3. Speedy Loan is in the business of providing short term, unsecured loans to individuals and operates twelve loan stores in New Mexico. See Daye’s FOFs ¶ 7, at 2; Speedy’s FOFs ¶ 1, at 1.
4. Those loans are made “in the regular course of [Speedy Loan’s] trade or commerce.” Pretrial Order ¶ 15, at 10 (stipulated fact).
5. “Since at least August 22, 2010, Speedy has offered a single loan product, which it calls an ‘installment loan.’ ” Pretrial Order ¶ 12, at 9 (stipulated fact).
6. “Speedy entered into 31,082 loans in New Mexico between August 22, 2010 and August 22, 2014.” Pretrial Order ¶ 13, at 10 (stipulated fact). See Daye’s FOFs ¶ 9, at 2; Speedy’s FOFs ¶ 2, at 1.
7. To qualify for a loan, Speedy Loan required its customers “to have a bank account from which payments could be withdrawn through electronic fund transfer.” Pretrial Order ¶ 16, at 10 (stipulated fact).
8. Speedy Loan required its customers to provide the account and routing numbers associated with such an account “[a]s part of the loan application process.” Pretrial Order ¶ 17, at 10 (stipulated fact).
9. Speedy Loan required all of its customers to sign both a loan agreement and a “PPD/ACH [Prearranged Payment and Deposit/Automated Clearing House] Authorization” form. Pretrial order ¶¶ 18, 20, at 10-11 (stipulated facts). See Daye’s FOFs ¶¶ 35-36, at 5.
10. All of Speedy Loan’s loan agreements listed the “Total of Payments,” and stated that the Total of Payments is the amount that the borrower “will have paid when [they] have made all scheduled payments.” Pretrial Order ¶ 39, at 13 (stipulated fact).
11. Each loan agreement also contained a “Payment Schedule” and stated that the borrower promised to pay “each installment payment as it becomes due as shown above in the Payment Schedule.” Pretrial Order ¶ 38, at 12-13 (stipulated fact).
12. The loan agreements also provided:
On or about the day each installment payment becomes due, you authorize us to affect [sic] one or more ACH [Automated Clearing House] debit entries to your Account at the Bank.
You acknowledge that the account on which the Check/ACH Authorization is drawn is a legitimate, open, and active account.
This document represents the final agreement between creditor and you and may not be contradicted by evidence of any alleged oral agreement.
Pretrial Order ¶ 19, at 10 (stipulated fact).
13. For each loan, the PPD/ACH Authorization form specified a “schedule of automatic debits from the customer’s bank account.” Pretrial Order ¶ 20, at 11 (stipulated fact).
14. Speedy Loan used that schedule of automatic debits to remind employees when they should withdraw money from the customer’s bank account. See Pretrial Order ¶ 21, at 11 (stipulated fact).
15. The Total of Payments listed in all of the loan agreements was consistent with the schedule of automatic debits contained in the corresponding PPD/ACH Authorization form. See Daye’s FOFs ¶73, at 17; Speedy’s FOFs ¶ 14, at 3.
16. 25,976 of Speedy Loan’s loan agreements, however, listed a Total of Payments that was “lower than the sum of payments disclosed in the Payment Schedule.” Pretrial Order ¶40, at 13 (stipulated fact).
17. The total discrepancy between the Totals of Payments and the Payment Schedules was $783,282.50. See Pretrial Order ¶ 42, at 13 (stipulated fact).
18. Both Speedy Loan and its customers expected payments in accordance with the loan agreement’s Total of Payments and the PPD/ACH Authorization form’s schedule of automatic debits and not in accordance with the loan agreement’s Payment Schedule. See Speedy’s FOFs ¶ 16, at 3
19. Speedy Loan “never attempted to collect the amounts identified in the Payment Schedule,” and instead “collected the amounts on the PPD/ACH schedule.” Speedy’s FOFs ¶ 16, at 3.5
20. Speedy Loan “has known of the New Mexico. Small Loan Act’s provisions governing payday loans since at least August 22, 2010.” Pretrial Order ¶ 24, at 11 (stipulated fact).
21. Speedy Loan’s employee handbook included the following instructions as part of the process of giving a loan:
Have the customer-sign the PPD/ACH Authorization and again take it to ensure that you have it in your possession. Remember to tell the customer that if they, do not want the payment to come out of their account on the date shown, they must come in to the store and make the payment -in cash, before 2:30 p.m. (Central time) on the business day before the ACH date.
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MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
James 0. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on: (i) the Plaintiffs Requested Findings of Fact and Conclusions of Law, filed May 24, 2017 (Dóc. 158)(“Daye’s FOFs”); (ii) the Defendant’s Proposed Findings of Fact and Conclusions of Law, filed May 24, 2017 (Doc. 156)(“Speedy’s FOFs”); and (iii) the Opposed Motion to Strike, Witnesses, filed May 13, 2016 (Doc. 95)(“Motion to Strike”).1 The Court held a bench trial on March 15, 2Ó17. See Transcript of Bench Trial, held March 15, 2017 (“Tr.”).2 The primary issues are: (i) how much should the' Plaintiffs recover on account of the misrepresentations of Defendant Community Financial Loan Service Centers, LLC, doing business as Speedy Loan, regarding the cost of its loans; and (ii) how much should the Plaintiffs recover on account of Speedy Loan’s violations of New Mexico law regarding payday loans. The Court determines that Speedy Loan’s misrepresentations did not damage the Plaintiffs, because those misrepresentations made Speedy Loan’s loans appear more expensive than they actually were. Consequently, the named plaintiff can recover statutory damages and attorney’s fees, but the unnamed plaintiffs can recover nothing. The Court also determines that Speedy Loan must return the interest and fees it collected from the Plaintiffs to the extent that it collected more than the New Mexico Small Loan Act, N.M. Stat. Ann. §§ 58-15-1 to -39, permits.
FINDINGS OF FACT
The Plaintiffs and Speedy Loan have stipulated to some facts. See Pretrial Order ¶¶ 1-53, at 8-19, filed February 15, 2017 (Doc. 144)(“Pretrial Order”). The proposed findings of facts and conclusions of law submitted by the parties agree on other facts. See, e.g., Daye’s FOFs ¶ 9, at 2 (alleging that Speedy Loan made 31,082 loans during the time period covered by Daye’s suit); Speedy’s FOFs ¶ 9, at 2 (same).3 The Court has carefully considered those stipulations and proposed findings, and it sets forth its findings (“FOFs”) below.4
1. Speedy Loan is a Delaware LLC. See Pretrial Order ¶2, at 8 (stipulated fact).
2. Speedy Loan is a profitable business. See Pretrial Order ¶ 4, at 8 (stipulated fact).
3. Speedy Loan is in the business of providing short term, unsecured loans to individuals and operates twelve loan stores in New Mexico. See Daye’s FOFs ¶ 7, at 2; Speedy’s FOFs ¶ 1, at 1.
4. Those loans are made “in the regular course of [Speedy Loan’s] trade or commerce.” Pretrial Order ¶ 15, at 10 (stipulated fact).
5. “Since at least August 22, 2010, Speedy has offered a single loan product, which it calls an ‘installment loan.’ ” Pretrial Order ¶ 12, at 9 (stipulated fact).
6. “Speedy entered into 31,082 loans in New Mexico between August 22, 2010 and August 22, 2014.” Pretrial Order ¶ 13, at 10 (stipulated fact). See Daye’s FOFs ¶ 9, at 2; Speedy’s FOFs ¶ 2, at 1.
7. To qualify for a loan, Speedy Loan required its customers “to have a bank account from which payments could be withdrawn through electronic fund transfer.” Pretrial Order ¶ 16, at 10 (stipulated fact).
8. Speedy Loan required its customers to provide the account and routing numbers associated with such an account “[a]s part of the loan application process.” Pretrial Order ¶ 17, at 10 (stipulated fact).
9. Speedy Loan required all of its customers to sign both a loan agreement and a “PPD/ACH [Prearranged Payment and Deposit/Automated Clearing House] Authorization” form. Pretrial order ¶¶ 18, 20, at 10-11 (stipulated facts). See Daye’s FOFs ¶¶ 35-36, at 5.
10. All of Speedy Loan’s loan agreements listed the “Total of Payments,” and stated that the Total of Payments is the amount that the borrower “will have paid when [they] have made all scheduled payments.” Pretrial Order ¶ 39, at 13 (stipulated fact).
11. Each loan agreement also contained a “Payment Schedule” and stated that the borrower promised to pay “each installment payment as it becomes due as shown above in the Payment Schedule.” Pretrial Order ¶ 38, at 12-13 (stipulated fact).
12. The loan agreements also provided:
On or about the day each installment payment becomes due, you authorize us to affect [sic] one or more ACH [Automated Clearing House] debit entries to your Account at the Bank.
You acknowledge that the account on which the Check/ACH Authorization is drawn is a legitimate, open, and active account.
This document represents the final agreement between creditor and you and may not be contradicted by evidence of any alleged oral agreement.
Pretrial Order ¶ 19, at 10 (stipulated fact).
13. For each loan, the PPD/ACH Authorization form specified a “schedule of automatic debits from the customer’s bank account.” Pretrial Order ¶ 20, at 11 (stipulated fact).
14. Speedy Loan used that schedule of automatic debits to remind employees when they should withdraw money from the customer’s bank account. See Pretrial Order ¶ 21, at 11 (stipulated fact).
15. The Total of Payments listed in all of the loan agreements was consistent with the schedule of automatic debits contained in the corresponding PPD/ACH Authorization form. See Daye’s FOFs ¶73, at 17; Speedy’s FOFs ¶ 14, at 3.
16. 25,976 of Speedy Loan’s loan agreements, however, listed a Total of Payments that was “lower than the sum of payments disclosed in the Payment Schedule.” Pretrial Order ¶40, at 13 (stipulated fact).
17. The total discrepancy between the Totals of Payments and the Payment Schedules was $783,282.50. See Pretrial Order ¶ 42, at 13 (stipulated fact).
18. Both Speedy Loan and its customers expected payments in accordance with the loan agreement’s Total of Payments and the PPD/ACH Authorization form’s schedule of automatic debits and not in accordance with the loan agreement’s Payment Schedule. See Speedy’s FOFs ¶ 16, at 3
19. Speedy Loan “never attempted to collect the amounts identified in the Payment Schedule,” and instead “collected the amounts on the PPD/ACH schedule.” Speedy’s FOFs ¶ 16, at 3.5
20. Speedy Loan “has known of the New Mexico. Small Loan Act’s provisions governing payday loans since at least August 22, 2010.” Pretrial Order ¶ 24, at 11 (stipulated fact).
21. Speedy Loan’s employee handbook included the following instructions as part of the process of giving a loan:
Have the customer-sign the PPD/ACH Authorization and again take it to ensure that you have it in your possession. Remember to tell the customer that if they, do not want the payment to come out of their account on the date shown, they must come in to the store and make the payment -in cash, before 2:30 p.m. (Central time) on the business day before the ACH date. You may ask the customer to initial individual items for emphasis but it is not required. The signature is sufficient.
[[Image here]]
Make copies of all of these documents, Contract, PPD/ACH Authorization (you need the original plus two copies of this document, original for file, one copy for the customer and one copy for the Installment PPD/ACH binder or drawer), Privacy Policy Statement, and the Installment Loan disclaimer. The copies go to the customer. We keep the originals! All Originals go in the customer file.
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Following this procedure is mandatory and will ensure that you are operating within the limits of the Truth in Lending Act [15 U.S.C. §§ 1601-67f] and other laws.
Speedy Loan Policy and Procedure Manual 14.23 (updated November 12, 2014)(CFSC_DayeJDiscovery000277)(Ex-hibit 50). See-' Tr. at 2:22-3:23 (Mattison, Court, Kochersberger)(admitting, without objection, the fifty exhibits specified in the parties’ amended consolidated exhibit list).
22.Speedy Loan required its customers, as a condition-of receiving a loan, to provide a debit authorization giving Speedy Loan the authority to' electronically transfer funds from the customer’s bank account for repayment.6
23. “Between August 22, 2010 and August 22, 2014, 31,074 of. [Speedy Loan’s] 31,082 [New Mexico] loans charged more than the legal fee for payday loans.” Pretrial Order ¶31, at 12 (stipulated fact).
24. Speedy’ Loan “collected $7,340,471.14 above the legal fee for payday loans.” Pretrial Order ¶ 32, at 12 (stipulated fact).
25. Speedy Loan never included in its loan agreements “the disclosures required to accompany a payday loan” under New Mexico law. Pretrial Order ¶27, at 11 (stipulated fact).
26. Speedy Loan frequently renewed its loans. See Pretrial Order ¶34, at 12 (stipulated fact).
27. Speedy Loan did not afford “borrowers the right to enter an unsecured payment plan.” Pretrial Order ¶ 25, at 11 (stipulated fact). .
28. Speedy Loan did not afford borrowers “the right to rescind any of its loan documents.” Pretrial Order ¶28, at 11 (stipulated fact).
29. All of Speedy Loan’s loans had “repayment periods exceeding 35 days.” Pretrial Order ¶29, at 12 (stipulated fact).
30. 12,189 of Speedy Loan’s loans were “to be repaid in fewer than four payments” or had a term that was “less than 121 days.” Pretrial Order ¶ 23, at 11 (stipulated fact).
31. Daye, the named plaintiff, took out four loans from Speedy Loan. See Daye’s FOFs ¶ 10, at 2 (“Speedy made four loans to Ms. Daye.”); Speedy’s FOFs ¶ 34, at 6 (“Ms. Daye is the named Plaintiff in this case, and obtained and four loans from Speedy.”).
32. To obtain those loans, Speedy Loan required Daye to authorize electronic fund transfers from her bank account for repayment of those loans. See supra FOFs ¶ 21. See also Daye’s FOFs ¶ 15, at 3.
33. Speedy Loan used that authorization to withdraw money from Daye’s bank account to pay her loan. See Pretrial Order ¶ 11, at 9 (stipulated fact).
34. Daye.. would have preferred to make her-loan payments in person, and pays her electricity, water, and car insurance bills im person. See Tr. at 35:21-25 (Mattison, Daye)(stating that Daye “would have gone into the store to make [her] payments” if Speedy Loan “had given [her] the choice of not paying by automatic withdrawals”); id. at 36;10-15 (Mattison, Daye)(stating that Daye pays her “electricity bill, [her] water bill[,] [a]lso my insurance, my vehicle insurance bill” in person).7
35. Daye repaid her four loans in full. See Daye’s FOFs ¶17, at 3; Speedy’s FOFs ¶¶ 35-38, at 6.
36. Daye believed that the PPD/ACH Authorization forms attached to her loan agreements “specified when [her] payments were going to be made and how much” she had to pay. Tr. at 44:21-24 (Kochersberger, Daye).
37. Daye “never paid any attention or even noticed” the loan agreements’ Payment Schedules. Tr. at 45:15-18 (Kochers-berger, Daye). See Speedy’s FOFs ¶ 41, at 6.
38. Daye never expected to make the payments that those Payment Schedules specify. See Tr. at 46:1-4 (Kochersberger, Daye). See Speedy’s FOFs ¶ 41, at 6.
39. “Speedy Loan never tried to collect payments [from Daye] in accordance with” that schedule. Tr. at 46:5-7(Kochersber-ger, Daye). See Speedy’s FOFs ¶ 40, at 6.
40. Speedy Loan “only took the payments that were reflected” on Daye’s PPD/ACH Authorization forms. Tr. at 46:8-10 (Kochersberger, Daye). See Speedy’s FOFs ¶ 40, at 6.
41. The Totals of Payments listed in the loan agreements “match[ed] up with” the payments listed in Daye’s ACH/PPD Authorization forms. Tr. at 47:10-13 (Ko-chersberger, Daye).8
42. Kevin Dabney is the President of Speedy Loan Wisconsin — a legal entity distinct from Speedy Loan — and he acted as a consultant and overseer for Speedy Loan. See Tr. at 62:14-19 (Kochersberger, Dabney). See also Daye’s FOFs ¶ 6, at 2.
43. Speedy Loan used eCheckTrac software to generate the Payment Schedules in its loan agreements as well as the schedules on its PPD/ACH Authorizations forms. See Tr. at 85:16-22 (Kochersberger, Dabney); id. at 86:2-7 (Kochersberger, Dabney). See also Speedy’s FOFs ¶ 11, at 2-3.
44. Neither Speedy Loan’s customers nor New Mexico regulators identified the discrepancies between those two sets of schedules. See Tr. at 90:19-91:6 (Kochers-berger, Dabney).
45. State regulators regularly audited Speedy Loan, and Speedy Loan regularly conducted internal audits. See Tr. at 75:11-77:2 (Kochersberger, Dabney); id. at 78:23-84:24 (Kochersberger, Dabney).
46. Speedy Loan did not use the Payment Schedules in its loan agreements “for any purpose at all.” Tr. at 88:11-15 (Ko-chersberger, Dabney).9
47. Speedy Loan’s inclusion of inconsistent Payment Schedules and Totals of Payments in some of its loan agreements was not willful.10
48. Luana Gaco, an unnamed class member who testified at trial, took out eight loans from Speedy Loan, and took six of them out between August 22, 2010 and August 22, 2014. See Daye’s FOFs ¶¶ 18-19, at 3; Speedy’s FOFs ¶ 43, at 7.
49. Gaco believed that making payments via automatic withdrawals was a requirement for obtaining those loans. See Tr. at 178:6-7 (Gaco).
50. Speedy Loan collected money from Gaco only in accordance with the payment schedules on her PPD/ACH Authorization Forms. See Tr. at 183:7-15 (Kochersber-ger, Gaco). See also Speedy’s FOFs ¶ 54, at 8.
51. Gaco relied on Speedy Loan “to give [her] ACH alternate information and [to] follow the law.” Tr. at 186:17-19 (Mat-tison, Gaco).11
52. Charles Robert Foster is an unnamed class member who took out eight loans from Speedy Loan, and he took six of those loans out between August 22, 2010 and August 22, 2014. See Daye’s FOFs ¶ 27, at 4; Speedy’s FOFs ¶ 58, at 8.
53. Speedy Loan told Foster that he “could come in and pay cash,” and that he “could come in and pay off the money early.” Tr. at 197:24-198:3 (Kochersberger, Foster).
54. Foster looked to the payment schedules on his PPD/ACH Authorization forms to determine what he was going to pay and when his payments were due. See Tr. at 201:23-202:10 (Kochersberger, Foster).
55.Foster never noticed the Payment Schedule on the first page of his loan agreements. See Tr. at 202:11-13 (Ko-chersberger, Foster).12
CONCLUSIONS OF LAW
The Court will now state its conclusions of law (“COLs”). The Court will begin by summarizing the case’s procedural history. It will then set out the law regarding issues relevant to its analysis. The Court will then present that analysis.
PROCEDURAL BACKGROUND
1. The case’s procedural history includes Daye’s Complaint for Damages, filed August 22, 2014 (Doc. l)(“Complaint”); class certification, see Memorandum Opinion and Order, 313 F.R.D. 147 (D.N.M. 2013) (Doc. 82)(“Class Certification MOO”); and partial summary judgment, see Memorandum Opinion and Order, 233 F.Supp.3d 946 (D.N.M. 2017) (Doc. 138)(“SJ MOO”). It also includes a bench trial; written closing arguments, see Plaintiffs Closing Argument at 2, filed May 24, 2017 (Doc. 159)(“Daye’s Closing”); Speedy Loan’s Closing Argument' at 1, filed May 24, 2017 (Doc. 157)(“Speedy’s Closing”); and proposed FOFs.
1. The Complaint.
2. On August 22, 2014, Daye filed her Complaint. See Complaint at 1, Daye asserts that Speedy Loan violated both federal law — specifically the Truth in Lending Act, 15 U.S.C. §§ 1601-67f (“TILA”), and the Electronic Funds Transfer Act, 15 U.S.C. §§ 1693-93r (“EFTA”) — as well as state law — specifically the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 (“UPA”) and the New Mexico Small Loan Act, N.M. Stat. Ann. §§ 58-15-1 to -39 (“Small Loan Act”), Complaint ¶ 7, at 2.
3. In the Complaint, Daye asserts' four distinct claims for relief. First, Daye asserts that “[t]he payday loans made to Ms. Daye, along with every other payday Iban with like characteristics, violated the New Mexico Small Loan Act” such that those loans are void. Complaint ¶ 75,' at 13. Consequently, according to Daye, “all borrowers who-entered into void loans are entitled to the return of all interest and other charges other than principal,” Complaint ¶ 76, at 13, and, “[i]n the alternative, Speedy would be unjustly enriched by being permitted to retain or collect amounts in excess of the legally permitted rate' [of interest], and should be required to disgorge such amounts and be prohibited from collecting ' any further unlawful amounts,” Complaint ¶ 77, at 13.
4. Second, Daye asserts a claim for TILA “statutory damages plus costs and reasonable attorney fees.” Complaint ¶ 79, at 13.
5.. Third, Daye asserts a claim for EFTA “statutory damages plus costs and reasonable attorney fees.” Complaint 1181, at 14.
6. Fourth, Daye asserts a UPA claim for “actual damages, trebled, including all money paid.to Speedy in excess of the principal amount loaned, plus costs and reasonable attorney fees,” Complaint ¶ 84, at 14, and for “injunctive relief which enjoins Speedy from continuing to collect unlawful amounts on its illegal payday loans,” Complaint ¶ 85, at 15. •
2. Class Certification.
7. On February 9, 2016, the Court certified a class action under rule 23 of the Federal Rules of Civil Procedure. See Class Certification MOO, 313 F.R.D. at 152. The class consists of all persons who entered into a loan with Speedy Loan between August 22, 2010, and August 22, 2014, when Dáye filed her Complaint. See Class Certification MOO, 313 F.R.D. at 152.
8. The Court also certified four subclasses. See Class Certification MOO, 313 F.R.D. at 174. The four subclasses are as follows:
1. The “Payday Loan Subclass” consists of all members of the class who entered into a loan with Speedy beginning four years prior to the filing of this action, and EITHER (a) Speedy conditioned the loan upon repayment by means of preauthor-ized debit authorization OR (b) Speedy accepted preauthorized debit authorization and either the loan was to be repaid in fewer than four payments, or the term of the loan was less than 120 days. .The members of the Payday Loan Subclass assert á right to relief under the ' UPA .and other legal theories for Speedy’s illegal payday loans.
2. The “EFTA Subclass”' consists of all members of the class who entered into a loan with Speedy beginning one year prior to the filing of this case, and .whose loan was conditioned upon , repayment by means of preauthorized electronic fund transfer. The members of,the EFTA Subclass assert a right to relief under the EFTA.
3. The “TILA Subclass” consists of all members of the class who entered into a loan with Speedy beginning one year prior to the filing of this case, in which EITHER (a) the loan paperwork disclosed a “Total of Payments” and “Finance Charge” lower than the true amounts, OR (b) the form contract did not state the dates upon which the first payment or any subsequent payments were due, or whether the payments were due weekly, monthly, or otherwise, or the number of payments. The members of the TILA Subclass ássert a right to relief under the TILA.
4. The “Deceptive Disclosure Subclass” consists of all members of the class . who entered into a loan with Speedy that disclosed a “Total of Payment's” and “Finance Charge” lower than the true amounts. The members of the Deceptive Disclosure Subclass assert a right to relief under the UPA.
Class Certification MOÓ, 313 F.R.D. at 152-53 (quoting Brief in Support of Plaintiffs Opposed Motion for Class Certification at 3-4, filed November 27, 2015 (Doc. 61)).
3. The Motion to Strike.
9.On March 28, 2016, Speedy Loan submitted a witness list containing five new witnesses-including two witnesses, Luana Gaco and Charles Robert Foster, who ultimately testified at trial-whom Speedy Loan had not disclosed. See Community Financial Service Centers, LLC’s Witness List 3-4, filed April 18, 2016 (Doc. 95 — 1); supra FOFs ¶¶ 48, 52 (identifying Gaco" and Foster as testifying witnesses). Daye moved the Court to strike the five new witnesses on the grounds that the additional witnesses prejudiced her; she stated that, even if she were able to depose the new witnesses, she would need to review voluminous documents-in a short time and would, be unable, to send -follow-up written discovery or take follow-up depositions. See Motion to Strike ¶ 15, at 4.
10. After Daye filed ’ the Motion to Strike, however, Daye deposed two of the five new witnesses, and Speedy Loan withdrew the other three new witnesses from its witness list. See Transcript of Hearing at 5:24-6:4 (taken September 6, 2016)(Mat-tison)(“Strike Tr.”).13 Daye also conceded at the hearing that she has been able to conduct some written discovery, such that the- additional witnesses no-longer prejudice her. See Strike Tr. at 6:22-7:3 (Matti-son): Accordingly, the Court concludes that Speedy : Loan’s delay does not prejudice Daye in any way and is harmless.
4. Summary Judgment.
11. On January 20, 2017, the Court granted in part and denied in part the Plaintiffs Opposed Motion for Summary Judgment, filed April 5, 2016 (Doc. 89 Sealed Version)(Doc. 97 Public Version). See SJ MOO, 233 F.Supp.3d at 1020-21.
12. The, Court determined that, under the Small Loan Act, “Speedy Loan’s loans at issue in this case are payday loans even though Speedy Loan sometimes characterizes them as installment loans,” SJ MOO, 233 F.Supp.3d at 1012, and that Speedy Loan “require[d] borrowers to preauthorize debit authorizations as a condition for receiving a- loan,” SJ MOO, 233 F.Supp.3d at 1016.
13. The Court concluded that.Speedy Loan violated the TILA and the EFTA, and awarded damages accordingly. See SJ MOO, 233 F.Supp.3d at 1011-12 (concluding that-Speedy Loan violated the TILA and the EFTA); id. at 1016-1020 (awarding statutory damages under the TILA and the EFTA). The Court also concluded “that Speedy Loan, for UPA purposes, intentionally reported different totals of payments in the TILA Box and the payment schedule for Daye’s loans,” SJ MOO, 233 F.Supp.3d at 1012, but “decline[d] to choose a specific UPA damages amount at th[at] time,” SJ MOO, 233 F.Supp.3d at 1020. The Court reasoned that it “could award UPA subclass members up to the differenee between the represented cost of their loans and the true costs of their loans,” and that “the UPA sets this statutory cap but allows the Court full discretion to award subclass members less than that amount as well.” SJ MOO, 233 F.Supp.3d at 1020.
5. The Bench Trial.
14. The Court held a bench trial on March 15, 2017, and the parties began with opening statements. See Tr. at 2:14-16 (Court).
15. In her opening statement, Daye observed that the Court “ha[d] already included in its [SJ MOO] that all of the defendant’s loans between August 22, 2010 and August 22, 2014, were payday loans under New Mexico law.” Tr. at 11:14-17 (Mattison). Daye asserted both that Speedy Loan “charged higher rates than what was permitted” for payday loans, Tr. at ' 12:7-8 (Mattison), and that -Speedy Loan “disclosed [a] total of payments on the loans” that was less than “the borrowers’ payment obligation,” Tr. at 15:15-17 (Mattison).
16. Speedy Loan, in its opening statement, framed the issues remaining before the Court as questions regarding the “damages • suffered by the customers al-legtedly] as a result of these loans being payday loans and not installment loans.” Tr. at 16:16-19 (Kochersberger). Speedy Loan asserted that its violations of New Mexico law were unknowing, see Tr. at 16:21-22 (Kochersberger), that it did not benefit from those violations, see Tr. at 17:9-10 (Kochersberger), and that those violations did not harm its customers, because they “got the exact deal from Speedy Loan that they wanted,” Tr. at 17:14-15 (Kochersberger). Consequently, according to Speedy Loan, this case “is a situation where despite violating the law no one was really damaged.” Tr. at 18:15-16 (Kochersberger).
17. Daye then began to present her case by calling Daye to the stand. See Tr. at 26:23-24 (Mattison). Daye testified that she took out and repaid four loans from Speedy Loan, see Tr. at 30:20-24 (Matti-son, Daye), and that Speedy Loan required her to authorize automatic withdrawals from her bank account “in order to get a loan,” Tr. at 34:18-21 (Mattison, Daye).
18. Daye also testified that her payments to Speedy Loan were taken out of her bank account on the day on which she was paid her Navajo Nation retirement benefits. See Tr. at 34:22-35:1 (Mattison, Daye). Daye said that, if she had not been required to authorize automatic withdrawals, she would have made her payments in person at Speedy Loan’s store just as she paid her bills for electricity, water, and car insurance. See Tr. at 35:21-25, 36:10-15 (Mattison, Daye).
19. On cross-examination, Speedy Loan showed Daye a copy of one of her loan agreements and a copy of her corresponding PPD/ACH Authorization form. See Tr. at 44:5-20 (Kochersberger, Daye). Daye stated that the her other loan agreements were “pretty similar” to the one presented to her on the stand, Tr. at 44:12-14 (Ko-chersberger, Daye), and that a PPD/ACH Authorization form~“substantially similar” to the one presented to her on the stand-accompanied each agreement, Tr. at 44:15-18, 44:25-45:2 (Kochersberger, Daye). Daye admitted: (i) that the PPD/ACH Authorization form “specified when [her] payments were going to be made and how much,” Tr. at 44:21-24 (Kochersberger, Daye); (ii) that she “never paid any attention or even noticed” the loan agreement’s Payment Schedule, Tr. at 45:15-18 (Ko-chersberger, Daye); (iii) that she never expected to make the payments specified by that Payment Schedule, see Tr. at 46:1-4(Kochersberger, Daye); (iv) that “Speedy Loan never tried to collect payments in accordance with” that schedule, Tr. at 46:5-7 (Kochersberger, Daye); (v) that Speedy Loan “only took the payments that were reflected” on the PPD/ACH Authorization form, Tr. at 46:8-10 (Kochersber-ger, Daye); and (vi) that the total of payment listed in the loan agreement “match[ed] up with” the payments listed in the ACH/PPD Authorization form, Tr. at 47:10-13 (Kochersberger, Daye).
20. Once Daye finished testifying, Daye indicated that she had no more witnesses or evidence to present. See Tr. at 60:12-15 (Court, Mattison).
21. Speedy Loan called Kevin Dabney to the stand. See Tr. at 61:19 (Kochersber-ger). Dabney stated that he was the President of Speedy Loan Wisconsin, which is “a different legal entity from the one that’s named in this lawsuit,” Tr. at 62:1-9 (Ko-chersberger, Dabney), and that he acted as an overseer and consultant for Speedy Loan New Mexico, see Tr. at 62:14-19 (Kochersberger, Dabney).
22. Dabney described the loan application process in New Mexico. See Tr. at 64:1-72:5 (Kochersberger, Dabney).
23. Dabney then described how state regulators audit Speedy Loan, see Tr. at 75:11-77:2, 83:1-84:24 (Kochersberger, Dabney), as well as Speedy Loan’s internal audit procedure, see Tr. at 78:23-82:25 (Kochersberger, Dabney).
24. Dabney then stated that the eCheckTrac software used by Speedy Loan generated the Payment Schedule listed on the first page of Speedy Loan’s loan agreements. See Tr. at 85:9-11 (Dab-ney), According to Dabney, the same software generated the payment schedule listed on the “PPD/ACH authorization form,” Tr. at 85:16-22 (Kochersberger, Dabney), which matches the “box labeled total of payments” on the first page of Speedy Loan’s loan agreements, see Tr. at 86:2-7 (Kochersberger, Dabney).
25. Dabney indicated that Speedy Loan expected to receive payments in accordance with the PPD/ACH form and not the schedule listed on the first page of the' loan agreements. See Tr. at 87:20-24 (Ko-chersberger, Dabney). According to Dab-ney, Speedy Loan does not “utilize that payment schedule from the first page of the contract for any purpose at all.” Tr. at 88:11-15 (Kochersberger, Dabney).
26. Dabney suggested that the payment schedule on the first page is an artifact “from an older contract that we never saw or our attorney never caught,” Tr.. at 88:14-19 (Kochersberger, Dabney), although he could not determine with specificity how that happened, see Tr. at 89:22-25 (Kochersberger, Dabney). Dabney asserted that neither customers nor government regulators identified the discrepancies between the two payment schedules. See Tr. at 90:19-91:6 (Kochersberger, Dabney).
27. Dabney also asserted that Speedy Loan did not benefit from requiring its customers to authorize automated withdrawals, because, “[p]rior [to] our ability to use ACH, if you look at our bad debt then and you look at our bad debt after the ability to use ACH the bad debt didn’t change.” Tr. at 91:13-17 (Dabney).
28. On cross-examination, Dabney indicated that he did not think that it was possible that borrowers ended up paying more than the amount listed “in' the total of payments on the face of the contract.” Tr. at 125:7-11 (Mattison, Dabney).
29. .Speedy Loan then called Luana Gaco, one of unnamed plaintiffs, to the stand. See Tr. at 171:13-15 (Kochersber-ger, Gaco). Gaco stated that she had taken out a loan from Speedy Loan “[a]bout three times, maybe.” Tr. at 173:22 (Gaco).
30. Gaco also stated that, when she went to Speedy Loan’s store to take out her first loan, she wanted Speedy Loan to withdraw her loan payments directly from her bank account, see Tr. at 177:22-182:2 (Kochersberger, Gaco), because “[tjhat’s the easiest way for us to pay our bills,” Tr. at 178:14-15 (Gaco)..
31. Gaco testified that, when she took .out her loans, she “was under the impression that” paying via automatic withdrawal “was a requirement.” Tr. at 178:6-7 (Gaco).
32. Gaco indicated that Speedy Loan only collected money in accordance with the payment schedule on the PPD/ACH Authorization Form. See Tr. at 183:7-15 (Kochersberger, Gaco).
33. On cross examination, Gaco stated that she relied on Speedy Loan “to give [her] ACH alternate information and [to] follow the law.” Tr. at 186:17-19 (Mattison, Gaco).
34. Speedy Loan then called Charles Robert. Foster, another unnamed plaintiff, to the stand. See Tr. at 193:2 (Foster). Foster stated that he borrowed money from Speedy Loan. See Tr. at 194:22-24 (Kochersberger, Foster).
35.. Foster stated that he wanted to make is payments via automatic deductions fi’om his checking account. See Tr. at 196:14-24 (Kochersberger, Foster). Foster also stated, when asked whether Speedy Loan gave him an option to pay in a different way, that “they told me I could come in and pay cash, I could come in and pay off the money early if Í had the money,” Tr. at 197:24-198:3 (Kochersberger, Foster).
36. Foster testified that he looked to the payment schedule on the PPD/ACH Authorization Form to determine what he was going to pay and when his payments were due. See Tr. at 201:23-202:10 (Ko-chersberger,' Foster). Foster also testified that he never noticed the Payment Schedule on the first page of his loan contract. See Tr. at 202:11 — 13 (Kochersberger, Foster).
37. The Court then concluded the bench trial with a determination that the parties were to submit written closing statements and proposed FOFs. See Tr. at 211:14-19, 212:9-12 (Court).
6. Closing Statements.
38. In her closing statement, Daye argues that, “[i]n enacting the 2007 amendments [to the Small Loan Act], the New Mexico legislature focused on payday loans as a particularly risky product for consumers,” and concludes that, “if lenders want the competitive advantage provided by debit authorizations, they had to offer lower fees and provide additional protections.” Daye’s Closing at 2. According to Daye, that lenders use post-dated checks and debit authorizations is dangerous for consumers, because it
puts lenders “first in line” to be paid (rather than being “just another bill”). Because the payday loan is tied to a borrower’s payday, the lender can be reasonably sure the. check will clear. Most borrowers will.simply run out of money to cover their expenses before the end of the month, often taking out more loans (and paying more fees) to pay for the expenses. ...
Daye’s Closing at 2 (quoting Susanna Mon-tezemolo, Center for Responsible Lending, Payday Lending Abuses and Predatory Practices at 2 (2013), http://www.responsiblelending.org/state-oflending/reports/10-Payday-Loans.pdf).
39. Daye then argues that , the Deceptive Disclosure Subclass should.be able to recover-“as damages pursuant to the UPA”-the “fees that Speedy actually collected from class members in excess of the return of principal and fees.authorized by statute.” Daye’s Closing at 4.
40. Daye also argues that the Payday Loan Subclass needs injunctive relief “to prevent Speedy from collecting amounts above the legally permitted amount,” because some class members still have outstanding loan ' balances with Speedy.” Daye’s Closing at 6.
41. According to Daye, Speedy Loan “misrepresented and understated the actual cost of its loans” by disclosing, in 25,976 of its loans, a Total of Payments lower than the “contractual payment obligation stated in the Payment Schedule. on the face of the loan,” which- “made Speedy’s loans appear less, expensive than they actually were.” Daye Closing at 12. .
42. Daye thus argues that the Deceptive Disclosure Subclass should be able to recover under the UPA “difference between the true and represented price” of the loans-$783,282.50. Daye’s Closing at 12-13.
43. Daye asserts that the PPD/ACH Authorization forins’ payment schedules are irrelevant to the Deceptive Disclosure Subclass’ UPA claims, even if Speedy Loan’s customers expected to pay in accordance with those schedules and ¿ven if those schedules matched the Total of Payments stated in the loan contracts, because the Payment Schedule on the face of the loan contracts-and not the PPD/ACH Authorization 'forms’ payment schedules-constitutes Speedy Loan’s customers’ actual legal obligation. See Daye’s Closing at 13-14.
44. In its closing argument, Speedy Loan argués that the “Plaintiffs failed to prove at trial that the class members have been damaged, and Speedy respectfully requests that the award'be limited to $400 in statutory damages allowable to Ms. Daye, the only named plaintiff in this case.” Speedy’s Closing at 1.
45. Speedy Loan states that it “believed that' it was providing installment loans” and that it inadvertently made loans with “terms less than 120 days,” which meant that those loans could not qualify as installment loans. Speedy’s Closing at 2.
46. Turning to the discrepancy between the Total of Payments and the Payment Schedule, on the face of its loan contracts, Speedy Loan argues that it charged its customers in accordance with the schedule of payments listed on the PPD/ ACH Authorization form, which agreed with the Total of Payments, and not in accordance with the Payment Schedule. See Speedy’s Closing at 4-5. Consequently, according to Speedy Loan, “[t]he implied calculated larger finance charge from the Payment Schedule was never collected or paid.” Speedy’s Closing at 5.
47. Speedy Loan then contends that, under the UPA, unnamed class members can recover only their actual damages. See Speedy’s Closing at 10-11.
48. Speedy Loan also contends that the Payday Loan Subclass has suffered no actual damages, even though Speedy Loan charged more than the “allowable payday loan fees,” because Speedy Loan’s customers “received exactly the loan that they expected and agreed to.” Speedy’s Closing at 11-12.
49. What is more, according to Speedy Loan, the “Plaintiffs now seek the benefits of the lower payday loan fees without the drawbacks (the shorter term and restricted limits on principal, for example).” Speedy’s Closing at 13. Thus, again according to Speedy Loan, “[i]t makes little sense to attempt to place the borrowers in the position they would have been in had they been offered payday loans.” Speedy’s Closing at 14.
50. Speedy Loan argues that the discrepancy between the Total of Payments and the Payment Schedule on the face of its loan contracts caused no actual damages, because “in every case the borrower actually paid the lesser amount of the two incongruous representations.” Speedy’s Closing at 16 (emphasis in original).
51.Speedy Loan concludes by observing that its “mistakes did not damage any of the customers” and by “requesting] that the Plaintiffs’ recovery be limited to statutory damages for the named plaintiff and attorney fees.” Speedy’s Closing at 18.
LAW REGARDING DIVERSITY JURISDICTION AND ERIE
52. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)(“Erie”), a federal district court sitting in diversity applies “state law with the objective of obtaining the result that would be reached in state court.” Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). Accord Mem. Hosp. of Laramie County v. Healthcare Realty Trust Inc., 509 F.3d 1225, 1229 (10th Cir. 2007). The Court has held that if a district court exercising diversity jurisdiction cannot find a Supreme Court of New Mexico “opinion that [governs] a particular area of substantive law ... [the district court] must ... predict how the Supreme Court of New Mexico would [rule].” Guidance Endodontics, LLC v. Dentsply Int’l., Inc., 708 F.Supp.2d 1209, 1224-25 (D.N.M. 2010)(Browning, J.). “Just as a court engaging in statutory interpretation must always begin with the statute’s text, a court formulating an Erie prediction should look first to the words of the state supreme court.” Peña v. Greffet, 110 F.Supp.3d 1103, 1132 (D.N.M. 2015)(Browning, J.).14 If the Court finds only an opinion from the Court of Appeals of New Mexico, the Court “certainly may and will consider the Court of Appeal[s’] decision in making its determination, [but] the Court is not bound by the Court of Appeals’] decision in the same way that it would be bound by a Supreme Court decision.” Mosley v. Titus, 762 F.Supp.2d 1298, 1332 (D.N.M. 2010) (noting that where the only opinion on point is “from the Court of Appeals, [ ] the Court’s task, as a federal district court sitting in this district, is to predict what the Supreme Court of New Mexico would do if the case were presented to it”)(citing Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007)(explaining that, “[w]here no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do,” and that, “[i]n doing so, it may seek guidance from decisions rendered by lower courts in the relevant state”)).15 The Court may also rely on decisions by the United States Court of Appeals for the Tenth Circuit interpreting New Mexico law. See Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d at 1243 & n.30.16 Ultimately, “the Court’s task is to predict what the state supreme court would do.” Wade v. EMCASCO Ins. Co., 483 F.3d at 666. Accord Mosley v. Titus, 762 F.Supp.2d at 1332 (citation omitted); Rimbert v. Eli Lilly & Co., 577 F.Supp.2d 1174, 1188-89 (D.N.M. 2008)(Browning, J.)(quoting Wade v. EMCASCO Ins. Co., 483 F.3d at 665-66).
LAW REGARDING THE NEW MEXICO UNFAIR PRACTICES ACT
53. “The UPA provides individual and class action remedies for unfair, deceptive, or unconscionable trade practices.” Valdez v. Metro. Prop. & Cas. Ins. Co., 2012 WL 1132414 at *19 (D.N.M. Mar. 31, 2012)(Browning, J.)(citing Quynh Truong v. Allstate Ins. Co., 2010-NMSC009, ¶ 22, 147 N.M. 583, 227 P.3d 73, 80)). “Generally speaking, the UPA is designed to provide a remedy against misleading identification and false or deceptive advertising.” Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 22, 142 N.M. 437, 166 P.3d 1091, 1096.17
54. To state a claim under the UPA for an unfair or deceptive practice, a complaint must allege:
(1) the defendant made an oral or written statement, a visual description or a representation of any kind that was ei-th'er false or misleading; (2) the false or misleading representation was knowingly made in connection with the sale, lease, rental, or loan of goods or services in the regular course of the defendant’s business; and (3) the representation was of the type that may, tends to,'or does deceive or mislead any person.
Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166 P.3d at 1093 (citing N.M. Stat. Ann. § 57-12-12(D); Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, ¶ 13, 112 N.M. 97, 811 P.2d 1308, 1311)). “The gravamen of an unfair trade practice is a misleading, false, or deceptive statement made knowingly in connection with the sale of goods or services.” Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 17, 125 N.M. 748, 965 P.2d 332, 338.
' 55. Under the UPA, unconscionable trade practices include
act[s] or practiced] in connection with ... the extension of credit in the collection of debts that to a person’s detriment:
(1) take[] advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or
(2) result[] in a gross disparity between the value received by a person and the price paid.
N.M. Stat. Ann. § 57-12-2(E). Accordingly, a trade practice can'be procedurally unconscionable, under § 57-12-2(E)(1), or substantively.unconscionable, under § 57-12-2(E)(2). See Cordova v. World Finance Corp., 2009-NMSC-021, ¶ 21, 146 N.M. 256, 208 P.3d 901 (“The doctrine of contractual unconscionability can be analyzed from both procedural and substantive perspectives.”)
56, “Procedural unconscionability ... examines the particular factual circumstances surrounding the formation of [a] contract,, including the relative bargaining strength, sophistication of the parties, and.the extent to which either party felt free to accept or decline terms demanded by the other.” Cordova v. World Finance Corp., 2009-NMSC-021, ¶ 23, 146 N.M. 256, 208 P.3d at 907-08.
57. Substantive unconsciona-bility, on the other hand, “concerns the' legality and fairness of the contract terms themselves,” and “focuses on such issues as-whether the contract terms are commercially reasonable and fair, the purpose and effect of the terms, the one-sidedness of the terms, and other similar policy concerns.” Cordova v. World Finance Corp., 2009-NMSC-021, ¶ 22, 146 N.M. 256, 208 P.3d at 907. A contractual term is substantively unconscionable if it is illegal, or if it “is grossly unreasonable and against our public policy under the circumstances,” Cordova v. World Finance Corp., 2009-NMSC-021, ¶ 31, 146 N.M. 256, 208 P.3d at 909, even if “there is not a statute that specifically limits' [such] contract terms,” because “[r]uling on substantive uncon-scionability is an inherent equitable power of the court, and does not require prior legislative action,” State ex rel. King v. B & B Investment Group, Inc., 2014-NMSC-024, ¶ 33, 329 P.3d 658, 670. Moreover, the UPA’s provisions regarding unconsciona-bility “evince[] a legislative recognition that, under certain conditions, the market is truly not free, leaving, it,for courts to determine when the market is not free, and empowering courts to stop and preclude those who prey on the desperation of others from being rewarded with windfall profits.” State ex rel. King v. B & B Investment Group, Inc., 2014-NMSC-024, ¶ 33, 329 P.3d at 671.
58. Under the UPA, “[a]ny person who suffers any loss of money or property, real or personal, as a result of any ... method, act or practice declared unlawful by the [UPA] may bring an action to.recover actual damages or the sum of one hundred dollars ($100),. whichever is greater.” N.M. Stat. Ann. § 57-12-10(B). UPA plaintiffs do not need to show actual damages, or the actual loss of money or property to recover statutory damages, however. See Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 44, 142 N.M. 437, 166 P.3d at 1099-1100-(“[T]he UPA does- not require proof of actual monetary or property loss.”).18
'59. In a class action under the UPA, statutory damages are available only to the named plaintiff whereas class members can recover only their actual damages. See N.M. Stat. Ann. § 57-12-10(B).
60. Injunctive relief under the UPA is available to people “likely to be damaged by an unfair or deceptive trade practice ... under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive or take unfair advantage of any person is not required.” N.M. Stat. Ann. § 57-12-10(A).
61. “The court shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails.” N.M. Stat. Ann. § 57-12-10(C).
NEW MEXICO LAW REGARDING SMALL LOANS
62. The Small Loan Act states that a payday loan is “a loan in which the licensee accepts a personal check or debit authorization tendered by the consumer and agrees in writing to defer presentment of that check or use of the debit authorization until the consumer’s next payday or another date agreed to by the licensee and the consumer.” N.M. Stat. Ann. § 58-15-2(H). The term “payday loan”:
(1) includes any advance of money or arrangement or extension of credit whereby the licensee, for a fee, finance charge or other consideration:
(a) accepts a dated personal check or debit authorization from a consumer for the specific purpose of repaying a payday loan;
(b) agrees to hold a dated personal check or debit authorization from a consumer for a period of time prior to negotiating or depositing the personal check or debit authorization; or
(c)pays to the consumer, credits to the consumer’s account or pays another person on behalf of the consumer the amount of an instrument actually paid or to be paid pursuant to the New Mexico Small Loan Act of 1955; but
(2) does not include:
(a) an overdraft product or service offered by a banking corporation, savings and loan association or credit union; and
(b) installment loans.
N.M. Stat. Ann. § 58-15-2(H)(1)-(2).
63. An installment loan, on the other hand, is “a loan that is to be repaid in a minimum of four successive substantially equal payment amounts ... with a period of no less than one hundred twenty days to maturity,” for which the lender does not “require[], as a condition of making the loan, the use of post-dated checks or debit authorizations for repayment of that loan.” N.M. Stat. Ann. § 58-15-2(E).
64. Installment loans cannot be payday loans, see N.M. Stat. Ann. § 58-15-2(H)(2)(b), so when a lender “accepts”-but does not require-“a personal check or debit authorization tendered by the consumer,” N.M. Stat. Ann. § 58-15-2(H), the loan qualifies is a payday loan only if it does not qualify as an installment loan, he., it is to be repaid in less than four payments, it is to be repaid in payments that are not substantially equal, or it. has a period “of less than one hundred twenty days to maturity,” N.M. Stat. Ann. § 58-15-2(E). When a lender “requires, as a condition of making the loan, the use of post-dated checks or debit authorizations for repayment of that loan,” the loan cannot be an installment loan, N.M. Stat. Ann. § 58-15-2(E), so the loan is a payday loan so long as the lender “agrees in writing to defer presentment of that check or use of the debit authorization until the consumer’s next payday or another date,” N.M. Stat. Ann. § 58-15-2.
65. The Small Loan Act imposes certain requirements on payday loans. See N.M. Stat. Ann. § 58-15-33.
66. Payday lenders cannot charge interest on a payday loan, but they can charge “an administrative fee of not more than fifteen dollars fifty cents ($15.50) per one hundred dollars ($100) of principal ... payable in full at the end of the term of the payday loan,” and they can charge “an additional administrative fee of not more than fifty cents ($.50) per executed new payday loan agreement.” N.M. Stat. Ann. § 58-15-33.
67. Payday loans cannot “have a stated maturity greater than thirty-five days,” cannot “have a stated minimum term less than fourteen days unless agreed to in writing by the consumer,” and must include “a scheduled pay date for the consumer within [its] term.” N.M. Stat. Ann. § 58-15-32(B).
68. Lenders cannot “enter into an agreement for a renewed payday loan or otherwise refinance or extend the term of a payday loan.” N.M. Stat. Ann. § 58-15-34(A). A renewed payday loan is “a loan in which a consumer pays in cash the administrative fee payable under a payday loan agreement and refinances all or part of the unpaid principal balance of an existing payday loan with a new payday loan from the same licensee.” N.M. Stat. Ann. § 58-15-20EQ.
69. Instead, lenders must offer borrowers the opportunity to enter into an interest-free, no-fee “unsecured payment plan for any unpaid administrative fees and principal balance of the unpaid loan” lasting for “a minimum of one hundred thirty days,” with “relatively equal installment payments based upon the consumer’s schedule of pay periods.” N.M. Stat. Ann. § 58-15-35. See also N.M. Stat. Ann. § 58-15-35(D)(“A payment plan entered into pursuant to the provisions of this section shall not be considered an installment loan.”).
70. The Small Loan Act requires payday lenders to
provide a notice immediately above the consumer’s signature on each payday loan agreement in at least twelve-point bold type using the following language:
(1) A payday loan is not intended to meet long-term financial needs.
(2) You should use a payday loan only to meet short-term cash needs.
(3) A payday loan is a high-cost loan. You should consider what other lower-cost loans are available to you.
(4) If you cannot fully repay a payday loan when due, you have a right to enter into a payment plan requiring payment within a minimum of one hundred thirty days, in relatively equal installments, based upon your scheduled pay periods. If you enter into a payment plan, you will not have to pay an additional administrative fee or interest on the outstanding principal balance or any unpaid administrative fees.
(5) •. If you have had payment obligations under a payment plan pursuant to Section 58-15-35 NMSA 19.78, you may not enter into a new payday loan until at least ten calendar days have passed since you have completed all payment obligations pursuant to all of your outstanding payday loan products, including that payment plan.
N.M. Stat. Ann. § 58-15-38(A). The Small Loan Act also requires payday lenders , to
display in each licensed place of business in a place where it will be readily legible by consumers, a sigh containing the following notice in both English and Spanish: “If-you cannot fully repay a payday loan when due, you have a right to enter into a payment plan requiring payment within a minimum of one hundred thirty days, in relatively equal installments, based upon your scheduled pay periods. If you enter into a payment plan; you will not have to pay an additional administrative fee or interest on the outstanding principal balance or any unpaid administrative fees.
N.M. Stat. Ann. § 58-15-38(B).
LAW REGARDING UNJUST ENRICHMENT
71. “New Mexico has long recognized actions for unjust enrichment, that is, quantum meruit or assumpsit." Ontiveros Insulation Co. v. Sanchez, 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695, 698 (citing Tom Growney Equip., Inc. v. Ansley, 1994-NMCA-159, ¶ 6, 119 N.M. 110, 888 P.2d 992, 994). See United States ex rel. Sun Collector Corp. v. Ins. Co. of North. America, 695 F.2d 455, 458 (10th Cir. 1982)(stating, that, under New Mexico law, “[o]ne who has been unjustly enriched at the expense of another may be required by law to make restitution"). To prevail on an unjust enrichment claim, “one must show that: (1) another has been knowingly benefitted at one’s expense (2) in a manner such that allowance of the other to retain the benefit would be unjust.” Ontiveros Insulation Co. v. Sanchez, 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d at 698.
72. New Mexico also recognizes “[d]isgorgement [as] an equitable remedy whereby a wrongdoer is forced to give up the benefits obtained as a result of his wrongdoing.” Peters Corp. v. N.M. Banquest Investors Corp., 2008-NMSC-039, ¶ 32, 144 N.M. 434, 188 P.3d 1185, 1194. “[T]he measure of disgorgement is the amount of a defendant’s gain, and a [plaintiff] need not suffer any loss at all to be entitled to the remedy.” Miller v. Bank of America, N.A., 2015-NMSC-022, ¶ 23, 352 P.3d 1162, 1169.
73. In one species of action for unjust enrichment, someone who performs on an illegal contract or on a contract that is unenforceable as against public policy is entitled to restitution “if restitution is required by the policy of the underlying prohibition.” Restatement (Third) of Restitution and Unjust Enrichment § 32(1). See id. § 32 cmt. c (“Cases within § 32(1) are those in which-although hot specifically directed by statute-restitution is clearly required by the policy of the statute that makes the underlying contract illegal.’’). See also Sunwest Bank v. Colucci, 1994NMSC-027, ¶¶ 9-15, 117 N.M. 373, 872 P.2d 346, 348-50 (relying heavily on the then-current version of the Restatement of Restitution). The Restatement provides a relevant illustration:
A borrows money from B at a market rate of interest that the laws of the jurisdiction condemn as usurious, then repays the loan in accordance with its terms. The statute regulating the parties’ transaction affords defensive relief only: it provides that the borrower may not be compelled to pay interest exceeding the stated maximum, but it is silent on the borrower’s right to restitution of excess interest paid. A has a claim against B under the rule of § 32(1) to recover interest paid in excess of the amount to which the debt could have been legally enforced.
Restatement (Third) of Restitution and Unjust Enrichment § 32 ill. 1. While Erie requires a federal court sitting in diversity to apply state law and not the American Law Institute’s Restatements' of the Law, the Supreme Court of New Mexico often looks to the Restatement of Restitution when determining the content of New Mexico law. See, e.g., Chase Manhattan Bank v. Candelaria, 2004-NMSC-017, ¶ 10, 135 N.M. 527, 90 P.3d 985, 988; Sunwest Bank of Albuquerque, N.A. v. Colluci, 1994-NMSC-027, ¶¶ 9-10, 12, 15, 117 N.M. 373, 872 P.2d 346, 349-50.
NEW MEXICO LAW REGARDING CONTRACT INTERPRETATION
74. In contract cases, “the role of the court is to give effect to the intention of the contracting parties.” Bogle Farms, Inc. v. Baca, 1996-NMSC-051, ¶ 21, 122 N.M. 422, 925 P.2d 1184, 1190. “The primary objective in construing a contract is not to label it with specific definitions or to look at form above substance, but to ascertain and enforce the intent' of the parties as shown by the contents of the instrument.” Bogle Farms, Inc. v. Baca, 1996-NMSC-051, ¶ 21, 122 N.M. 422, 925 P.2d 1184 (citing Shaeffer v. Kelton, 1980-NMSC-117, ¶8, 95 N.M. 182, 619 P.2d 1226, 1229). “The parol evidence rule ‘bars admission of evidence extrinsic to the contract to contradict and perhaps even supplement the writing.’” Mem’l Med. Ctr., Inc. v. Tatsch Const., Inc., 2000-NMSC-030, ¶ 16, 129 N.M. 677, 12 P.3d 431, 437 (citation omitted). If a contract is ambiguous, however, “evidence will be admitted to aid in interpreting the parties’ expressions.” C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070, 112 N.M. 504, 817 P.2d 238, 242 (citation omitted). “On the other hand, if the court determines that the contract is clear and unambiguous on its face, evidence of the circumstances surrounding the transaction, is inadmissible to vary or modify its terms.” C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070, ¶ 12, 112 N-M. 504, 817 P.2d at 242 (emphasis in original)(citation omitted).
75. The question whether an agreement contains an ambiguity is a matter of law. See Mark V., Inc. v. Mellekas, 1993-NMSC-001, ¶ 12, 114 N.M. 778, 845 P.2d 1232, 1235 (citing Levenson v. Mobley, 1987-NMSC-102, ¶ 7, 106 N.M. 399, 744 P.2d 174, 176). “An ambiguity exists in an agreement when the parties’ expressions of’ mutual assent lack clarity.” Mark V, Inc. v. Mellekas, 1993-NMSC-001, ¶ 12, 114 N.M. 778, 845 P.2d at 1235 (citation omitted). If, however, the “evidence presented is so plain that no reasonable person could hold any way but one, then the court may interpret the meaning as a matter of law.” Mark V, Inc. v. Mellekas, 1993-NMSC-001, ¶ 12, 114 N.M. 778, 845 P.2d at 1235. If, however, the court finds that the contract is “reasonably and fairly susceptible of different constructions, an ambiguity exists.” Mark V, Inc. v. Mellekas, 1993-NMSC-001, ¶ 12, 114 N.M. 778, 845 P.2d at 1235 (citing Vickers v. North Am., Land Dev., Inc., 1980-NMSC-021, ¶ 9, 94 N.M. 65, 607 P.2d 603, 606). New Mexico courts may consider extrinsic evidence to determine “whether the meaning of a term or expression contained in the agreement is actually unclear.” Mark V, Inc. v. Mellekas, 1993-NMSC-001, ¶ 12, 114 N.M. 778, 845 P.2d at 1235 (“New Mexico law, then, allows the court to consider extrinsic evidence to make a preliminary finding on the question, of ambiguity.”); C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070, ¶ 15, 112 N.M. 504, 817 P.2d at 242-43 (“We hold today that in determining whether a term or expression to which the parties have agreed is unclear, a court may hear evidence of the circumstances surrounding the making of the contract and of any relevant usage of trade, course of dealing, and'course of performance.” (citation and footnote omitted)). Once the court concludes that an ambiguity exists, the resolution of that ambiguity becomes a question of fact. See Mark V, Inc. v. Mellekas, 1993-NMSC-001, ¶ 13, 114 N.M. 778, 845 P.2d at 1235. To decide an ambiguous term’s meaning, “the fact finder may consider extrinsic evidence of the language and conduct of the parties and the circumstances surrounding the agreement, as well as oral evidence of the parties’ intent.” Mark V, Inc. v. Mellekas, 1993-NMSC-001, ¶ 13, 114 N.M. 778, 845 P.2d. at 1236. New Mexico contract law “requires the construction of ambiguities and uncertainties in a contract most strongly against the party who drafted the contract.” Schultz & Lindsay Const. Co. 1972-NMSC-013, ¶ 6, 83 N.M. 534, 494 P.2d 612, 614. See Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 22, 123 N.M. 752, 945 P.2d 970, 977 (“An ambiguity in an insurance contract is usually construed against, the insurer,' because courts will weigh their interpretation against the party that drafted a contract’s language.”).
LAW REGARDING INJUNCTIONS
76. Under traditional equitable principles, a plaintiff must demonstrate four things to obtain a permanent injunction:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, áre inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)(Thomas, J.). See Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1180 (10th Cir. 2003)(stating that, to obtain a permanent injunction, the party requesting such relief bears the burden of showing: “(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.” (citations omitted)). “[I]rreparable injury [is] a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again-a ‘likelihood of substantial and immediate irreparable injury.’ ” City of Los Angeles v. Lyons, 461 U.S. 95, 110, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)(quoting O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).
77. To obtain a preliminary injunction, a. plaintiff must show:
(1) a substantial likelihood of success on the merits, (2) that the plaintiff will suffer irreparable injury if the preliminary injunction is denied, (3) that the threatened injury to the plaintiff outweighs the injury to the defendant(s) caused by the preliminary injunction, and (4) that an injunction is not adverse to the public interest.
Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006) (citation omitted). The right to relief under a preliminary injunction “must be clear and unequivocal.” Aid for Women v. Foulston, 441 F.3d at 1115 (citation and internal quotations omitted). “[A] district court cannot enter a judgment purporting to bind nonparties over whom it does not have jurisdiction, seek to join those nonp'arties to the underlying litigation, and then issue an injunction against those parties based on a need to protect its earlier judgment.” Steans v. Combined Ins. Co. of Am., 148 F.3d 1266, 1271 (11th Cir. 1998).
ANALYSIS
78. The Court concludes that, by listing an inaccurate payment schedule in its loan agreements, Speedy Loan caused no actual damage to the members of the Deceptive Disclosure Subclass. Accordingly, the unnamed members of the Deceptive Disclosure Subclass cannot recover under the UPA, but the named plaintiff, Clara Daye, can recover statutory damages and attorney’s fees. The Court determines that all of the loans that Speedy Loan made between August 22, 2010 and August 22, 2014 were payday loans. Speedy' Loan, thus,, violated the Small Loan Act by charging interest on those loans. It follows that Speedy Loan’s contractual terms requiring the members of the Payday Loan Subclass to pay interest are illegal and, thus, substantively unconscionable under the UPA. Consequently, Speedy Loan must return the interest it charged the Payday Loan Subclass to the extent that the interest exceeded the maximum administrative fee permissible under the Small Loan Act, $7,340,471.14.
I. THE COURT DENIES THE MOTION TO STRIKE, BECAUSE SPEEDY LOAN’S DELAY WAS HARMLESS.
79. Rule 26(a)(3)(A) of the Federal Rules of Civil Procedure requires parties to promptly disclose the names of the witnesses it intends to call at trial. See Fed. R. Civ. P. 26(a)(3)(A). Rule 37(c) states that, if a party fails to comply with rule 26(a), then “the party is not allowed to use that information or witness .. unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c).
. 80. The Court denies the Motion to Strike, because the Motion to Strike is based on a harmless delay. See supra COLs ¶ 10.
II. THE DECEPTIVE DISCLOSURE SUBCLASS SUFFERED NO ACTUAL DAMAGES, BECAUSE LOAN AGREEMENT INNACURA-CIES MADE THEIR LOANS APPEAR MORE EXPENSIVE THAN THEY ACTUALLY WERE.
81. Under the UPA, unnamed class members can recover only to the extent that they suffered actual damages. See N.M. Stat. Ann. § 57-12-10(B). Named class members can, however, recover their “actual damages or the sum of one hundred dollars ($100), whichever is greater,” and that award of damages is trebled if a defendant “willfully engaged” the practice that violated the UPA. N.M. Stat. Ann. § 57-12-10(B), (E). Courts “shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails.” N.M. Stat. Ann. § 57-12-10(C).
82. Speedy Loan violated the UPA by listing a Total of Payments and a payment schedule that were inconsistent with one another. See SJ MOO, 233 F.Supp.3d at 1012. The members of the Deceptive Disclosure Subclass made payments in accordance with the schedule of automatic debits contained in the PPD/ ACH Authorization form; they did not make the payments prescribed by their loan agreements’ Payment Schedules. See supra FOFs ¶¶ 18-19. Speedy Loan’s UPA violations, thus, made its loans appear more expensive than they actually were, see supra FOFs ¶ 15 (finding that the Total of Payments listed in Speedy Loan’s loan agreements agreed with the payments schedule in the PPD/ACH Authorization forms); supra FOFs ¶ 16 (finding that 25,-976 loan agreements contained a Total of Payments lower than the loan agreement’s Payment Schedule)', so the violations caused no actual damages.
83. The Court does not agree with Daye’s argument, that the loan agreements’Payment Schedules reflect the true contractual obligations of the Deceptive Disclosure Subclass’ members. The loan agreements simultaneously state that borrowers promise to make payments in accordance with the Payment Schedule, Pretrial Order ¶ 38, at 12-13 (stipulated facts), and that the Total of Payments is the amount that a borrower “will have paid when [they] have made all scheduled payments,” Pretrial Order ¶ 39, at 13 (stipulated fact). See supra FOFs ¶¶ 10-11. Speedy Loan generated loan agreements, including both the Total of Payments and the Payment Schedule. See supra FOFs ¶¶ 9-12 (describing the loan agreements); supra FOFs ¶ 43 (describing how Speedy Loan generates the Payments Schedules and Totals of Payments in its loan agreements). New Mexico contract law “requires the construction of ambiguities and uncertainties in a contract most strongly against the party who drafted the contract.” Schultz & Lindsay Const. Co., 1972-NMSC-013, ¶ 6, 83 N.M. 534, 494 P.2d 612, 614. See Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 22, 123 N.M. 752, 945 P.2d 970, 977 (“An ambiguity in an insurance contract is usually construed against the insurer, because courts will weigh their interpretation against the party that drafted a contract’s language.”). Accordingly, when the Payment Schedule and Total of Payments in one of Speedy Loan’s are inconsistent, a borrower’s true legal obligation is the smaller amount. Additionally, the parties’ course of performance-making and accepting payments according to the PPD/ACH Authorization form and the Total of Payments, see supra FOFs ¶¶ 18-19-supports the conclusion that the members of the Deceptive Disclosure Subclass were not obliged to make the payments stated by the Payment Schedules on their loan agreements when those Payment Schedules and the PPD/ACH Authorization 'forms were inconsistent.
84. The Court, consequently, concludes that Daye can recover $400.00 in statutory damages-$100.00 for each of her loans. See N.M. Stat. Ann. § 57-12-10(B), (E)(stating that a named plaintiff in a class action under the UPA can recover statutory damages, $100.00 per violation). Daye cannot recover actual damages, because she suffered none. See supra COLs ¶ 82. She cannot recover treble damages, because Speedy Loan’s UPA violations were not willful. See supra FOFs ¶ 47. Recovering statutory damages means that Daye is a “party complaining of an unfair or deceptive trade practice” who prevails, so she is entitled to recover “attorney fees and costs.” N.M. Stat. Ann. § 57-12-10. See Jones v. General Motors Corp., 1998-NMCA-020, ¶¶ 23-25, 124 N.M. 606, 953 P.2d 1104, 1109 (awarding UPA statutory damages to a plaintiff and stating'that “the attorneys’ fees to be awarded in this case are not nominal; they should reflect the full amount of fees fairly and reasonably incurred by Plaintiff in securing an award under the UPA”).19
85. The unnamed members of the Deceptive Disclosure Subclass cannot recover actual damages, because they suffered none. See supra COLs ¶82. The unnamed members of the Deceptive Disclosure Subclass cannot recover statutory damages, because the UPA' permits unnamed class members to recover only actual damages. See N.M. Stat. Ann. § 57-12-10(E). “[T]he prevailing party is the party who wins the lawsuit-that is, a plaintiff who recovers a judgment or a defendant who avoids an adverse judgment.” Dunleavy v. Miller, 1993-NMSC-059, ¶ 28, 116 N.M. 353, 862 P.2d 1212, 1219. Accordingly, the unnamed members'of the Deceptive Disclosure Subclass did not prevail on their UPA claims, so they cannot recover attorney’s fees or costs under N.M. Stat. Ann. § 57-12-10(0).
III. THE PAYDAY LOAN SUBCLASS CAN RECOVER TO THE EXTENT THAT ITS MEMBERS PAID MORE THAN THE SMALL LOAN ACT PERMITS SPEEDY LOAN TO CHARGE.
86. , Athough Speedy Loan marketed its loans as installment loans, none of its loans were installment loans-as the Small Loan Act defines that term-because Speedy Loan “require[d], as a condition of making the loan[s], the use of post-dated checks or debit authorizations for repayment of that loan.” N.M. Stat. Ann. § 58-15-2(E). See supra FOFs ¶22. A1 of Speedy Loan’s loans were, instead, payday loans, because they were- not installment loans, see N.M. Stat. Ann. § 58-5-2(H)(2)(b)(stating that the. term “payday loan” does not include installment loans), and because, for each, loan, Speedy Loan “accepted] .a personal check or debit, authorization tendered by the consumer and agree[d] in writing to defer presentment of that check or use of the debit authorization until the consumer’s next payday or another date agreed to by [Speedy Loan] and the consumer,” N.M. Stat. Ann. § 58-15-2(H). See supra FOFs ¶ 22.
87. Speedy .Loan afforded its customers, with almost none of the consumer protections that the Small Loan Act requires for payday-loan borrowers. All of its loans exceeded the maximum permissible term for payday loans-thirty-five days. See Pretrial Order ¶ 29, at. 12; N.M. Stat. Ann. § 58-15-32(B)(1). Speedy Loan did not offer a -130-day interest-free payment plan to any of its borrowers. See Pretrial Order ¶ 25, at 11; N.M. Stat. Ann. § 58-18-35. See also N.M. Stat. Ann. § 58-15-35(E)(stating that a payday 'lender- who “fails to offer a consumer the' opportunity to enter into a payment .plan for a payday loan- ... shall not- commence a legal proceeding against a consumer to collect on 'that payday loan if it has not been fully repaid”). Speedy Loan frequently refinanced its loans. See Pretrial Order ¶ 34, at 12; N.M. Stat. Ann. § 58-15-34(“A [lender] shall not ... enter into an agree ment for a renewed payday loan or otherwise refinance or extend the term of a payday loan ... .”)• Speedy Loan did not make the Small Loan Act’s required disclosures in its loan agreements or in its offices. See Pretrial Order ¶ 27, at 11; N.M. Stat. Ann. § 58-15-38.
88. Most important for the Plaintiffs, Speedy Loan charged interest on its payday loans, see Pretrial Order ¶ 30, at 12, while the Small Loan Act states that payday lenders “shall not charge a consumer interest on the outstanding principal owed on a payday loan product,” N.M. Stat. Ann. § 58-15-33(D). The Small Loan Act permits, however, payday lenders to “impose an administrative fee of not more than fifteen dollars and fifty cents ($15.50) per one hundred dollars ($100) of principal,” but unlike interest, the fee “is fully earned and nonrefundable at the time a payday loan agreement is executed and payable in full at the end of the term-of the payday loan or upon prepayment of the payday loan.” N.M. Stat. Ann. § 58-15-33(B). Speedy Loan collected an additional $7,340,471.14 by charging interest instead of the largest administrative fee that the Small Loan Act allows. See supra FOFs ¶ 24.
89. Violating the Small Loan Act is a criminal offense, albeit a misdemeanor, see N.M. Stat. Ann. § 58-15-30, but the Small Loan Act neither explicitly permits nor forbids private parties to sue because of Small Loan Act violations. The Plaintiffs, however, do not need a cause of action directly under the Small Loan Act to sue Speedy Loan for its statutory violations, The UPA allows’people to sue based on unconscionable trade practices, and Speedy Loan’s contractual terms requiring borrowers to pay interest on payday loans are substantively unconscionable, because they violate the Small Loan Act. See State ex rel. King v. B & B Investment Group, Inc., 2014-NMSC-024, ¶ 32, 329 P.3d 658, 670 (stating that “[substantive unconscion-ability is found” when a contract term is illegal as well as when a term is contrary to public policy or grossly unfair). See also Fiser v. Dell Computer Corp., 2008 NMSC-046,188 P.3d 1215, 1221 (“Substantive unconscionability relates to the content of. the .contract terms and whether they are illegal, contrary to public policy, or grossly unfair.”).20 Accordingly, the Plaintiffs can recover, under the UPA, to the extent that Speedy Loan’s violations of the Small Loan Act damaged them.
90. In the alternative, the Court determines that the Plaintiffs can recover from Speedy Loan to the extent necessary to vindicate the principle that “[a] person is not permitted to profit by his own wrong.” Restatement(Third) of Restitution and Unjust Enrichment § 3. See Ontiveros Insulation Co. v. Sanchez, 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d at 698 (stating that, to prevail on an unjust enrichment claim, “one must show that: (1) another has been knowingly benefitted at one’s expense (2) in a manner such that allowance of the other to retain the benefit would be unjust.”).21 Speedy Loan benefit-ted from its violations of the Small Loan Act, because, but for those violations, it would not have been able to collect any interest on its loans and would have been limited to the financing fees that the Small Loan Act permits. See N.M. Stat. Ann. § 58-15-33(B).
91. The Court’s alternative determination is in accord with the Supreme Court of New Mexico’s decision in State ex rel. King v. B & B Investment Group, Inc. In that case, the defendants made “signature loans” that carried annual percentage rates (“APRs”) “ranging from 1,147.14 to 1,500 percent.” 2014-NMSC-024, ¶ 1, 329 P.3d at 662. The Supreme Court of New Mexico determined that the signature loans were procedurally and substantively unconscionable even though the loaps did not otherwise violate any New Mexico statutes. See 2014-NMSC-024, ¶¶ 33-36, 329 P.3d at 670-71. The. Supreme Court of New Mexico determined that restitution was the appropriate remedy, and it measured restitution by striking the unconscionable contract term and instead “applying] the statutory default interest rate of 15 percent simple annual interest to these loans.” 2014-NMSC-024, ¶¶ 47-50, 329 P.3d at 675-76. Consequently, the court ordered the defendants “to refund all money [they] collected . •.. on their signature loans in excess of 15 percent of the loan principal as restitution for their unconscionable trade practices.” State ex rel. King v. B & B Investment Group, Inc., 2014-NMSC-024, ¶¶ 47-50, 329 P.3d at 675-76. The Court reaches an analogous result in this case by replacing the loan-agreement provisions that violate the Small Loan Act by charging interest with terms imposing the maximum administrative fee that the Small Loan Act permits. Accordingly,' the Court will order Speedy Loan to refund the “$7,340,471.14 above the legal fed for payday loans” that it collected. Pretrial Order ¶ 32, at-12 (stipulated fact). See supra FOFs ¶ 23.
92. Speedy Loan,.on the contrary, argues that it should not be forced to return its illegally collected interest. Speedy Loan reaches that conclusion by measuring its benefit and the Plaintiffs’ damages against a baseline where-instead of making payday loans without complying with the Small Loan Act’s payday-lending restrictions-Speedy Loan made loans that were not subject to those restrictions. See Speedy Loan Closing at 11-12. According to Speedy Loan, it did not benefit, relative to that baseline, because “the fact that it required its customers to authorize debit transactions as a condition of its loans” did not impact .its profitability. See Tr. at 91:13-16(Dabney)(“Prior to our ability to use ACH, if you look at our bad debt then and you look at our bad debt after the ability to use ACH, the bad debt didn’t change .... ”). Speedy Loan also contends that its Small Loan Act violations did not harm the members of the Payday Loan Subclass, because they received exactly the loans they wanted. See Speedy Loan Closing at 14.
93. Speedy Loan argues that its baseline is the appropriate measure of damages for two reasons. First, Speedy Loan argues that the only reason why its loans qualify as payday loans and not installment loans is because an inadvertent software error caused some of -its loans to have fewer than four payments or terms less than 120 days. Second, Speedy Loan argues that the Plaintiffs. would obtain a windfall at its expense if-the Court measured damages relative to a scenario where Speedy Loan made payday loans that complied with the Small Loan Act. See Speedy Loan Closing at 14 (“In effect, counsel for the class ask the Court to put the borrowers in the position--they would be in had they been offered installment loans at payday price.”). According to Speedy Loan, that measure of damages would allow the Plaintiffs to benefit from the longer repayment terms that its loans provide while, at the same time, allowing- the Plaintiffs to avail themselves of the Small Loan Act’s finance-charge limitations, which apply to loans that last no longer than thirty-five days. See Speedy Loan Closing at 14 (“This is better than any outcome [the Plaintiffs] could actually have enjoyed .under a lawful small loan product.”).
94. Both of the reasons Speedy Loan proffers are unconvincing. First, Speedy Loan cannot plausibly assert that it inadvertently made payday loans. Its loans qualify as payday loans because Speedy Loan required its customers to provide debit authorizations. See supra FOFs ¶ 22 (finding that Speedy Loan required debit authorizations); supra COLs ¶ 86 (concluding that Speedy Loan’s made payday loans). No one forced Speedy Loan to require those authorizations. While Speedy Loan did not intend to subject itself to the Small Loan Act’s payday-lending restrictions, Speedy Loan chose to make loans that qualify as payday loans under the Small Loan Act.
95. Second, the Plaintiffs would not receive a windfall if the Court forced Speedy Loan to return the excess finance charges. The Small Loan Act restricts payday-loan repayment terms to thirty-five days, but it also requires paydayfienders to offer their customers interest-free payment plans that last, at a minimum, 130 days. See N.M. Stat. Ann. § 58-15-35. Rather than being a •windfall or a contractual “benefit,” permitting the Plaintiffs to benefit from the Small Loan Act’s finance-charge limitation while repaying their loans over several months is what the. Small Loan Act requires.
96. .As described above, the Payday Loan Subclass is able to recover $7,340,471.14 under the UPA. Accordingly, the Payday Loan Subclass is a prevailing party such that ⅛ can recover its “attorney fees and costs.” N.M. Stat. Ann. § 57-12-10(C).
IV. INJUNCTIVE RELIEF FOR THE PAYDAY LOAN SUBCLASS IS NOT APPROPRIATE.
97. Daye requests, on behalf of the Payday Loan Subclass, “injunctive relief which enjoins Speedy from continuing to collect unlawful amounts on its illegal payday loans.” Complaint ¶ 85, at 14.
98. Under traditional equitable principles, a plaintiff must demonstrate four things to obtain a permanent injunction:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)(Thomas, J.). "([I]rreparable injury [is] a requirement that cannot be., met where there is no showing of any real or immediate -threat that the plaintiff will be wronged again-a ‘likelihood of substantial and-immediate irreparable injury.’” City of Los Angeles v. Lyons, 461 U.S. 95, 110, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)(quoting O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Under the UPA, courts can grant injunctions “under the principles of equity,” but a UPA plaintiff does not heed to show that they have already been harmed to obtain an injunction, because the UPA states that anyone who “is likely to be damaged by [a UPA violation] may be granted an injunction against” such violations. N.M. Stat. Ann. § 57-12-10(A).
99. On April 6, 2017, the Governor of New Mexico signed a bill-passed by the New Mexico House of Representatives on March 11, 2017 and by the New Mexico Senate on March 17, 2017-that amends the Small Loan Act such that it no longer permits payday loans at all. See 2017 N.M. Laws ch. 110 § 17(H) (“No lender shall make a loan pursuant to the New Mexico Small Loan Act of 1955 unless the loan is an installment loan or a refund anticipation loan.”). The Amendments take effect January 1, 2018. See 2017 N.M. Laws ch. 110 § 27. The Amendments define an installment loan as a loan of “five thousand dollars ($5,000) [or less] that is to be repaid in a minimum of four substantially equal payments ,.. with an initial stated maturity of not less than one hundred twenty days to maturity.” 2017 N.M. Laws ch. 110 § 11(F). Conspicuously absent from that legislative language is the Small Loan Act’s present statement that “a loan in which a licensee requires, as a condition of making the loan, the use of post-dated checks or debit authorizations for repayment of that loan” does not qualify as an installment loan. N.M. Stat. Ann. § 58-15-2(E). The amendments to the Small Loan Act cap the interest rates that lenders can charge. See 2017 N.M. Laws ch. 110 § 17(J)(“No lender shall make a loan pursuant to the New Mexico Small Loan Act of 1955 that has an annual percentage raté greater than one hundred seventy-five percent .... ”).
100. Daye has not established .that any member of the Payday Loan Subclass “will again be wronged in a similar way” before the amendments to the Small Loan Act become effective on January 1, 2018. City of Los Angeles v. Lyons, 461 U.S. at 111, 103 S.Ct. 1660. Nor has Daye established that any member of the Payday Loan Subclass “will again be wronged in a similar way” after those amendments become effective. City of Los Angeles v. Lyons, 461 U.S. at 111, 103 S.Ct. 1660. In fact, it is impossible for the Payday Loan Subclass to be wronged in a similar way once those amendments become effective. Speedy Loan injured the Payday Loan Subclass by charging more for its payday loans than the Small Loan Act permits, but on January 1, 2018 the Small Loan Act will cease to permit payday loans at all. Further, any loan that complies with the new interest-rate cap would also comply with the Small Loan- Act’s present restrictions on payday loan charges.22
,101. Speedy Loan could still injure members of the Payday Loan Subclass after January 1, 2018, but such injuries would be new and distinct harms caused by violating new and distinct laws. Accordingly, the prospect that members of the Payday Loan Subclass will suffer such harms does not satisfy the irreparable injury requirement for an injunction, he., that there is “a sufficient likelihood that he will again be wronged in a similar way,” and the proper remedy would be a second suit for damages and not an injunction. City of Los Angeles v. Lyons, 461 U.S. at 111, 103 S.Ct. 1660. Moreover, Daye has not shown that monetary damages are an inadequate remedy for such harms-or for violations of the currently applicable version of the Small Loan Act-so Daye has not shown that the members of the Payday Loan Subclass lack an adequate remedy at •law. Consequently, the Court will deny Daye’s request for injunctive relief.
IT IS ORDERED that: (i) the Deceptive Disclosure Subclass cannot recover anything; (ii) Plaintiff Clara Daye, as an individual, shall recover $400.00 in statutory damages as well as her attorney’s fees; (iii) the Payday Loan Subclass shall recover $7,340,471.14 as well as attorney’s fees; (iv) the Payday Loan Subclass is not entitled to injunctive relief; and (v) the Opposed Motion to Strike Witnesses, filed May 13, 2016 (Doc. 95) is denied.
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280 F. Supp. 3d 1222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daye-v-community-financial-loan-service-centers-llc-nmd-2017.