Arkansas Board of Collection Agencies and Old Republic Surety Company v. Sharon McGhee et al.
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SUPREME COURT OF ARKANSAS
No. 07129
ARKANSAS BOARD OF COLLECTION
AGENCIES AND OLD REPUBLIC
SURETY COMPANY,
APPELLANT,
VS.
SHARON MCGHEE, ET AL.,
APPELLEES,
Opinion Delivered 11708
APPEAL FROM PULASKI CIRCUIT
COURT
A D M I N I S T R A T I V E D E C I S I O N
REVERSED AND REMANDED;
CIRCUIT COURT AFFIRMED.
ROBERT L. BROWN, Associate Justice
The Arkansas Board of Collection Agencies (“Board”) appeals from an order of the
Pulaski County Circuit Court reversing its decision to deny the request of Sharon McGhee,
individually and on behalf of a class of similarly situated persons, for a claim on a surety
bond issued by Old Republic Surety Company, Inc. (“Old Republic”). We reverse and
remand the decision of the Board and affirm the decision of the circuit court.
On May 27, 2003, McGhee, individually and on behalf of a class of similarly situated
persons, filed an action in Pope County Circuit Court against Old Republic. Old Republic
had previously issued a surety bond to the Board dated August 1, 1999, in the amount of
$50,000 on behalf of Russellville Check Express, Inc. (“RCE”), a payday lender licensed
under the Arkansas CheckCashers Act, which was enacted in 1999 and is codified at
Arkansas Code Annotated §§ 2352101 – 2352117 (Repl. 2000 and Supp. 2007). McGhee
sought release of the bond amount to satisfy a consent judgment she and the class had
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received against RCE in the amount of $191,419.20. The consent judgment, accordingly,
established liability and damages against RCE for the checkcasher contracts entered into
with its customers, leaving only the issue of collection on the bond from the surety, Old
Republic, to be resolved.
The Pope County Circuit Court granted summary judgment in favor of McGhee, and
Old Republic appealed to this court. In Old Republic Surety Company v. McGhee, 360 Ark.
562, 203 S.W.3d 94 (2005) (McGhee I), this court reversed the circuit court’s grant of
summary judgment and held that McGhee had failed to exhaust her administrative remedies
by filing her suit in circuit court without first seeking relief from the Board.
After the circuit court dismissed her action in accordance with this court’s decision
in McGhee I, McGhee sought relief from the Board on the issue of Old Republic’s liability
under its bond. A hearing was held before the Board on May 25, 2005, after which the
Board issued its Findings of Fact, Conclusions of Law and Order. In its order, the Board
denied McGhee relief and ruled that Section XXX of its Rules and Regulations requires that
the check casher be found in violation of either the CheckCashers Act or the Rules and
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The consent judgment against RCE is dated January 8, 2003, and was entered in Pope
County Circuit Court. It explains that McGhee’s complaint against RCE had alleged that
RCE had charged its customers usurious rates of interest and that the circuit court had
previously entered an order granting summary judgment in favor of McGhee regarding her
usury claim. The consent judgment further declares all of RCE’s customer contracts
outstanding on or before the date of the filing of McGhee’s complaint as void and
unenforceable.
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Regulations adopted pursuant to the Act before making a demand on the bond. The Board
concluded that McGhee had presented no evidence that RCE had violated the CheckCashers
Act or the Rules and Regulations, and, accordingly, McGhee was not entitled to a claim on
the bond.
McGhee then filed a petition for judicial review in Pulaski County Circuit Court on
January 20, 2006, pursuant to the Arkansas Administrative Procedure Act. Shortly after
McGhee filed her petition for judicial review, Old Republic filed a motion to consolidate that
petition with an already pending petition for judicial review. The pending petition involved
a May 16, 2003 order of the Board, in which the Board, in an almost identical case, had
denied McGhee’s claim on a bond issued by Old Republic on behalf of AAA Check Cashing,
Inc., another payday lender. McGhee responded to the motion to consolidate and asserted
that the administrative appeal concerning the bonds issued on behalf of AAA Check Cashing
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had been resolved. As a result, McGhee formally moved to dismiss the earlier appeal.
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McGhee states in her brief to this court that after she filed a petition for review in the
AAA Check Cashing case, the class reached a settlement with the owners of AAA Check
Cashing, which was approved by the Craighead County Circuit Court. She states that this
mooted her claim against Old Republic in that case.
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McGhee and Old Republic agreed to a Joint Stipulation of Facts, which was
presented to the State Board at the May 25, 2005 hearing concerning the bonds issued on
behalf of RCE. In this Joint Stipulation of Facts, the parties acknowledged that “[i]n an
almost identical state court case,” McGhee had been awarded a judgment against AAA
Check Cashing and that she had received a hearing in that case before the Board. A copy of
the transcript from the earlier hearing and the advisory opinion issued after the hearing by
the Hearing Officer for the Board were attached to the Joint Stipulation. The parties further
stipulated that the advisory opinion had subsequently been approved and adopted by the
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On October 9, 2006, a hearing was held by the circuit court on McGhee’s petition for
review, and an order was entered on October 17, 2006. In that order, the circuit court
reversed the Board’s order and ruled that McGhee was entitled to the proceeds from the bond
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at issue. Specifically, the circuit court concluded: “The State Board of Collection Agency’s
ruling that the surety bond does not cover the Petitioner’s loss in this case is reversed
pursuant to Arkansas Code Annotated § 2515212(h).” Old Republic later filed a motion
for a new trial, which was never ruled upon by the circuit court, and, thus, was deemed
denied thirty days thereafter pursuant to Rule 4(b)(1) of the Arkansas Rules of Appellate
Procedure Civil. Old Republic and the Board filed separate notices of appeal from the
circuit court’s order.
I. Collateral Estoppel
Old Republic first maintains that McGhee is collaterally estopped from pursuing any
administrative appeal because she purposefully dismissed her petition for judicial review
concerning AAA Check Cashing, which, according to Old Republic, involved the same
parties and the same issues. Thus, Old Republic claims that the first administrative decision
by the Board, which denied McGhee’s request for a claim on a bond issued by Old Republic
on behalf of AAA Check Cashing, is intact and controls the same issues now raised in the
Board.
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On October 11, 2006, Old Republic, which was not a formally named party in the
administrative appeal, filed a motion to intervene, and an Agreed Order of Intervention was
entered by the circuit court.
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instant appeal to this court. Old Republic insists that the language on which McGhee bases
her claim against the bond in the instant case is the same as that in the previous case and that
the issue of whether the language of the bond allowed McGhee’s claim against the bond was
extensively litigated in the previous hearing before the Board.
Old Republic further contends that the doctrine of collateral estoppel applies to
agency decisions and is used to prevent collateral attacks on previous agency decisions when
the agency has conducted a hearing, made findings of fact and law, and applied those
findings in an administrative adjudication. Old Republic admits, however, that it did not
raise the affirmative defense of collateral estoppel to the Board in the instant case, but it
asserts that the first administrative appeal involving AAA Check Cashing was still pending
in circuit court when the May 25, 2005 hearing in this case took place and that it was not
until after the instant administrative appeal was lodged in circuit court that the first
administrative appeal was dismissed and the previous administrative decision became final
and controlling. Old Republic also admits that despite arguing the issue of collateral
estoppel to the circuit court during the circuit court’s hearing and also in its motion for a new
trial, the circuit court never ruled on the issue.
We decline to address the issue of collateral estoppel because the issue is not
preserved for our review. Old Republic admits that it never raised this issue to the Board as
a defense. It argues, however, that it could not raise the issue before the board because the
AAA Check Cashing appeal was pending in circuit court on a petition for judicial review and
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had not been dismissed by McGhee. It was only at the time of the dismissal, Old Republic
contends, that the AAA Check Cashing matter became final for purposes of collateral
estoppel, and by that time the RCE matter was already in circuit court.
We are not persuaded by Old Republic’s argument. At the time of the hearing before
the Board on McGhee’s claim relating to RCE, Old Republic was well aware of the fact that
the Board had already denied the AAA Check Cashing claim on May 16, 2003, based on an
advisory opinion issued by its appointed hearing officer. For this reason, it was obligated
to present any affirmative defense to the Board premised on collateral estoppel during the
RCE proceedings, even though a petition for judicial review was pending in circuit court on
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the AAA Check Cashing claim.
This court has held repeatedly that defenses must be presented first to the
administrative agency before they can be presented to an appellate court for consideration.
See, e.g., Nash v. Arkansas Elevator Safety Bd., 370 Ark. 345, __ S.W.3d __ (2007); AT&T
Communications of the Southwest, Inc. v. Arkansas Public Serv. Comm’n, 344 Ark. 188, 40
S.W.3d 273 (2001); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).
Old Republic’s collateralestoppel point has no merit.
II. Substantial Evidence
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Nor did Old Republic obtain a ruling from the Pulaski County Circuit Court on its
collateral estoppel defense, as it readily admits, which provides an additional reason to affirm
for lack of preservation. See e.g., Beverly EnterprisesArkansas, Inc. v. Thomas, 370 Ark.
310, __ S.W.3d __ (2007).
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Old Republic next claims that the record contains substantial evidence to support the
Board’s decision to deny McGhee’s claim on the Old Republic surety bond and that the
Board’s decision is not arbitrary or capricious and cannot be characterized as an abuse of
discretion. See Ark. Code Ann. § 2515212(h)(6) (2007). Old Republic further contends
that McGhee was afforded a full and complete hearing on the issues she raises before the
Board. It adds that the Board’s previous decision concerning the bonds issued on behalf of
AAA Check Cashing was reached only after a full hearing in front of an experienced hearing
officer who heard testimony from witnesses and considered exhibits and briefs submitted by
each party and then issued an advisory opinion. Old Republic notes that the transcript from
the previous hearing, including the exhibits, the hearing officer’s advisory opinion, and the
Board’s previous Findings of Fact and Conclusions of Law and Order in AAA Check
Cashing were submitted by both parties at the Board’s May 25, 2005 hearing as part of the
Joint Stipulation of Facts. It insists that the Board relied on all the evidence submitted in
reaching its decision in the RCE case and that the evidence is sufficient to support the
Board’s decision to deny the claim against the bond. Moreover, it urges that the Board is
familiar with interpreting its own Rules and Regulations, as well the language of the bond
in question, and that its decision should be upheld.
The Board, which submitted a separate brief, argues too that there was substantial
evidence to support its decision in favor of Old Republic and against collection under the
bond. It asserts that it was required to follow the procedures set out in its own Rules and
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Regulations and that Section XXX of the Rules and Regulations provides that the check
casher must have violated either a provision of the CheckCashers Act or one of the Board’s
rules in order for a claimant to make demand on a bond. The Board contends that McGhee
presented no evidence that RCE performed any act or engaged in any conduct prohibited by
the CheckCashers Act or the Board’s Rules and Regulations, and, therefore, the Board’s
decision to deny McGhee’s request for a claim on the bond was not arbitrary or capricious
or characterized by an abuse of discretion.
The Board also maintains that in making its decision in this case, it relied on the
decision it made several years ago concerning the bond issued on behalf of AAA Check
Cashing and that the parties stipulated that this earlier decision could be considered. In
reaching its earlier decision, the Board emphasizes that it relied heavily on the advisory
opinion issued by the hearing officer, which thoroughly discussed and analyzed the intent
of the parties in issuing the bond as well as the application of Section XXX. The Board
argues that it took this earlier decision into consideration and thoroughly analyzed the issues
in the RCE matter and, therefore, its decision was not arbitrary. The Board insists that there
was evidence presented that Old Republic had not intended for its bond to cover usury
judgments and that because it cannot be said that fairminded individuals would not have
reached the same conclusion as the Board, the Board’s decision is supported by substantial
evidence.
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McGhee makes several points in rebuttal. She maintains that the real issue in this case
is not whether RCE violated the CheckCashers Act or the Board’s Rules and Regulations,
but, rather, whether the bond covers her loss. She points out that she does not seek relief
based on any of the Board’s Rules and Regulations, as those rules did not even exist when
Old Republic issued the bond. Rather, she contends that the bond was in essence an
insurance agreement, which should be liberally construed in favor of coverage, and under
the bond’s language, her loss is covered.
Specifically, she contends that under the bond Old Republic agreed to satisfy, up to
$50,000, “any loss or damages suffered by the State and/or any person(s) of the State,” for
violation of the CheckCashers Act, the Rules and Regulations, and “any other applicable
laws of the State [of] Arkansas,” and she insists that any ambiguity in this language must be
construed in favor of coverage and against the surety. She notes that the Board’s Executive
Director unilaterally modified the language in the bonds after the RCE bond was issued to
eliminate the language providing for coverage resulting from a violation of “any other
applicable laws” in Arkansas, and she makes the point that had the bond not provided
coverage for a violation of any law, including usury laws, when issued, the Executive
Director would not have removed that language.
McGhee argues, in addition, that the circuit court’s reversal of the Board’s decision,
which denied the bond claim against Old Republic, was proper because RCE did actually
violate the Board’s subsequently adopted rules, which prohibit deceptive or unconscionable
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business practices, because the charging of unconstitutional usurious interest rates is
unconscionable. She further claims that RCE continued to charge usurious rates and fees
even after this court held that the General Assembly could not usurp a judicial function by
legislating that certain fees allowed under the CheckCashers Act were not interest. See
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Luebbers v. Money Store, Inc., 344 Ark. 232, 40 S.W.3d 745 (2001). She insists that the
Board’s decision in this case denying the claim under the bond was arbitrary and capricious
and that it was properly reversed by the circuit court.
Decisions by the Arkansas Board of Collection Agencies are reviewed pursuant to the
Administrative Procedure Act (APA), which is codified at Arkansas Code Annotated §§ 25
15201 – 2515218 (Repl. 2002 and Supp. 2007). This court has said that the “[r]eview of
administrative agency decisions, both by the circuit court and by appellate courts, is limited
in scope.” Dep’t of Health & Human Servs. v. R.C., 368 Ark. 660, 667, __ S.W.3d __, __
(2007) (quoting Ark. Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 185, 959 S.W.2d
46, 48 (1998)). Furthermore, “[t]he review by appellate courts is directed not to the decision
of the circuit court but to the decision of the administrative agency.” Id.
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In Luebbers, supra, this court held that Ark. Code Ann. § 2352104(b) (Repl. 2000)
of the CheckCashers Act, which exempted certain fees charged by check cashers from being
considered as interest, was a violation of the separationofpowers doctrine because it
deprived courts of the power to decide whether a transaction was usurious. This court said
that § 2352104(b) was an invalid attempt by the General Assembly to exclude certain
checkcashing transactions from the confines of the Arkansas Constitution’s usury
provisions.
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The Administrative Procedure Act provides for a circuit court’s review of an
administrative decision on the following grounds:
(h) The court may affirm the decision of the agency or remand the case
for further proceedings. It may reverse or modify the decision if the
substantial rights of the petitioner have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 2515212(h) (Repl. 2002).
This court has explained the deference that we give to an administrative decision:
We have recognized that administrative agencies are better equipped
than courts, by specialization, insight through experience, and more flexible
procedures to determine and analyze underlying legal issues affecting their
agencies, and this recognition accounts for the limited scope of judicial review
of administrative action and the refusal of the court to substitute its judgment
and discretion for that of the administrative agency.
R.C., 368 Ark. at 668, __ S.W.3d at __ (quoting Ark. Dep’t of Human Servs. v. Thompson,
331 Ark. 181, 185, 959 S.W.2d 46, 4849 (1998)). This court has further explained that
“[t]he challenging party has the burden of proving an absence of substantial evidence and
must demonstrate that the proof before the administrative agency was so nearly undisputed
that fairminded persons could not reach its conclusion.” R.C., 368 Ark. at 668, __ S.W.3d
at __. Finally, “[t]he question is not whether the evidence would have supported a contrary
finding, but rather whether it supports the finding that was made.” Id.
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In its Findings of Fact, Conclusions of Law and Order, the Board ruled that Section
XXX of its Rules and Regulations contain the only reference about when the Board could
make demand on a surety bond and that Section XXX requires that the Board find that the
check casher be in violation of either the CheckCashers Act or its Rules and Regulations
before making demand on a bond. The Board’s ruling, however, is unduly restrictive.
The surety bond issued on behalf of RCE states:
THE CONDITIONS OF THE ABOVE OBLIGATIONS ARE SUCH THAT:
. . . .
That the above bound Principal shall faithfully comply with and abide
by each and every provision of [Act 1216 of 1999] and all the Rules and
Regulations promulgated thereunder; shall faithfully perform the duties and
obligations pertaining to the business of checkcashing/deferred presentment
option services; shall satisfy any loss or damages suffered by the State and/or
any person(s) of the State resulting from the Principal’s violation of any
provision of Act 1216 of 1999 (or as amended) or the Rules and Regulations
promulgated thereunder or any other applicable laws of the State [of]
Arkansas; and that the State of Arkansas State Board of Collection Agencies
or any person(s) of this State suffering such loss or damages shall have the
right to bring an action on this bond against the Principal or Surety.
(Emphasis added.) McGhee points to the above emphasized language to support her
contention that the bond covers any loss resulting from RCE’s violation of any state law, not
just its violation of the CheckCashers Act or the Board’s Rules and Regulations. McGhee
argues that RCE manifestly violated this state’s usury laws by entering into usurious check
cashing agreements with its customers and that the consent judgment entered on January 8,
2003, establishes that liability.
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We agree that the applicable laws of the State of Arkansas, as referred to under the
Old Republic bond, have been violated. The Arkansas Constitution provides the following
regarding rates of interest and usurious loans:
(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into
after the effective date hereof shall not exceed five percent (5%) per annum
above the Federal Reserve Discount Rate at the time of the contract.
(ii) All such contracts having a rate of interest in excess of the
maximum lawful rate shall be void as to the unpaid interest. A person who has
paid interest in excess of the maximum lawful rate may recover, within the
time provided by law, twice the amount of interest paid. It is unlawful for any
person to knowingly charge a rate of interest in excess of the maximum lawful
rate in effect at the time of the contract, and any person who does so shall be
subject to such punishment as may be provided by law.
Ark. Const. art. 19, § 13(a).
In addition, Arkansas statutes provide for the maximum rate of interest to be charged
in this state based on Article 19, § 13 of the Arkansas Constitution and prohibit charging a
usurious rate of interest, which is an interest rate in excess of the maximum rate. See Ark.
Code Ann. §§ 457104 – 457105 (Repl. 2001).
It is apparent to this court that what this case entails is a question of law and whether
RCE violated the laws of Arkansas so as to invoke the terms of Old Republic’s bond. While
Old Republic and the Board would like to limit liability to violations of the CheckCashers
Act and the Board’s Rules and Regulations, which were not yet adopted when the bond was
issued in 1999, the plain reading of the bond language is not so limited. It protects against
loss or damage suffered by any person resulting from RCE’s violation of the “applicable laws
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of the State [of] Arkansas.” Without question, a violation of this state’s usury laws is a
violation of an applicable law of Arkansas.
Old Republic remonstrates and urges that it was entitled to rely on the CheckCashers
Act, which was enacted in 1999, before this court cast doubt on its constitutionality in our
Luebbers decision in 2001. We do not view that Act as affording Old Republic blanket
protection for purposes of the 1999 bond. The usury laws of this state, including what
constitutes interest or fees, have been part of our constitution, statutory law, and case law for
decades. See Ark. Const. art. 19, § 13(a); Ark. Code Ann. §§ 457104 – 457105 (Repl.
2001); see, e.g., Schuck v. Murdock Acceptance Corp., 220 Ark. 56, 247 S.W.2d 1 (1952).
It was incumbent upon Old Republic to know and abide by the clear public policy of this
state as expressed by the Arkansas people in the Arkansas Constitution regardless of one
legislative act (the CheckCasher Act) that runs counter to that public policy. Old Republic
did not do so, and by this failure, it violated the laws of this state and became liable under
the bond.
We conclude that the Board’s decision is at odds with the clear language of the
Old Republic bond because this state’s antiusury policy as expressed by Article 19, § 13 of
the Arkansas Constitution has been violated. Hence, substantial evidence does not support
the Board’s decision. We further hold that by violating the Arkansas Constitution, the
applicable laws of this state were violated irrespective of whether the CheckCashers Act
provided that checkcasher fees were not interest. See Ark. Code Ann. § 2352104(b) (Repl.
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2000), declared unconstitutional by Leubbers v. Money Store, Inc., supra. Accordingly, Old
Republic is liable to McGhee under the bond.
We reverse the order of the Arkansas Board of Collection Agencies and remand to the
Board for further action with regard to the surety bond and McGhee’s claim in accordance
with this opinion.
Administrative decision reversed and remanded; circuit court affirmed.
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