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Justice News

Department of Justice
U.S. Attorney’s Office
Southern District of New York

FOR IMMEDIATE RELEASE
Wednesday, February 10, 2016

Manhattan U.S. Attorney Announces Charges Against Owner Of, And Attorney For, $2 Billion Unlawful Internet Payday Lending Enterprise

Defendants Exploited Over 4.5 Million Financially Struggling Americans Through Unlawful Scheme to Evade State Usury Laws

Preet Bharara, the United States Attorney for the Southern District of New York, Karl Stiften, Special Agent-in-Charge of the St. Louis Field Office of the Internal Revenue Service (“IRS”), and Diego Rodriguez, Assistant Director-in-Charge of the New York Office of the Federal Bureau of Investigation (“FBI”), announced the unsealing of a criminal indictment charging SCOTT TUCKER and TIMOTHY MUIR with violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and the Truth in Lending Act (“TILA”) for operating a nationwide internet payday lending enterprise that systematically evaded state laws in order to charge illegal interest rates as high as 700% on loans.  Both defendants were arrested in Kansas City, Kansas, earlier today and will be presented in the United States District Court for the District of Kansas.  The case has been assigned to U.S. District Judge Katherine B. Forrest.

Mr. Bharara also announced a non-prosecution agreement (the “Agreement”) with two tribal corporations controlled by the Miami Tribe of Oklahoma, a Native American tribe.  As part of the Agreement, the tribal corporations agree to forfeit $48 million in criminal proceeds from TUCKER’s payday lending enterprise that are currently held in tribal bank accounts.  The Agreement also acknowledges, among other things, that a tribal representative filed false factual declarations in multiple state court actions.  TUCKER and MUIR used these false declarations to defeat numerous state enforcement actions seeking to enjoin the operation of their unlawful business.

Manhattan U.S. Attorney Preet Bharara stated:  “As alleged, Scott Tucker and Timothy Muir targeted and exploited millions of struggling, everyday people by charging illegally high interest rates – as much as 700 percent.  Tucker and Muir allegedly sought to evade liability by claiming that this $2 billion business was actually owned and operated by Native American tribes.  But thanks to the investigative work of the FBI and IRS, this deceptive and predatory scheme to take advantage of the most financially vulnerable in our communities has been exposed for what it is – a criminal scheme.”  

IRS Special Agent-in-Charge Karl Stiften stated:  “These defendants allegedly used deceptive and misleading lending practices to prey on millions of hard working individuals seeking payday loans.  In reality, these loan customers were taken advantage of and charged illegally high interest rates.”

FBI Assistant Director-in-Charge Diego Rodriguez stated:  “As alleged, Tucker and Muir deceptively preyed on more than 4.5 million working people, including those in New York, to enter into payday loans with interest rates ranging from 400 to 700 percent. Not only did their business model violate the Truth-in Lending Act, established to protect consumers from such loans, but they also tried to hide from prosecution by creating a fraudulent association with Native American Tribes to receive sovereign immunity. This scheme, like so many others who swindle innocent victims, only ends with an arrest by the FBI.”

As alleged in the Indictment[1] and described in the Agreement:

From at least 1997 until 2013, TUCKER engaged in the business of making small, short-term, high-interest, unsecured loans, commonly referred to as “payday loans,” through the Internet.  TUCKER’s lending enterprise, which had approximately 600 employees based in Overland Park, Kansas, did business as Ameriloan, f/k/a Cash Advance; One Click Cash, f/k/a Preferred Cash Loans; United Cash Loans; US FastCash; 500 FastCash; Advantage Cash Services; and Star Cash Processing (the “Tucker Payday Lenders”).  TUCKER, working with MUIR, an attorney for TUCKER’s payday lending businesses since 2006, routinely charged interest rates of 400% or 500%, and sometimes higher than 700%, using deceptive and misleading “disclosures” about the true cost of the loans.  These loans were issued to more than 4.5 million working people throughout the United States, including hundreds of thousands of people in New York, many of whom were struggling to pay basic living expenses.  Many of these loans were issued in states, including New York, with laws that expressly forbid lending at the exorbitant interest rates TUCKER charged.

The False Truth-in-Lending Act (“TILA”) Disclosures

TILA is a federal statute intended to ensure that credit terms are disclosed to consumers in a clear and meaningful way, both to protect customers against inaccurate and unfair credit practices, and to enable them to compare credit terms readily and knowledgeably.  Among other things, TILA and its implementing regulations require lenders, including payday lenders like the Tucker Payday Lenders, to accurately, clearly, and conspicuously disclose, before any credit is extended, the finance charge, the annual percentage rate, and the total of payments that reflect the legal obligation between the parties to the loan.

The Tucker Payday Lenders purported to inform prospective borrowers, in clear and simple terms, as required by TILA, of the cost of the loan (the “TILA Box”).  For example, for a loan of $500, the TILA Box provided that the “finance charge – meaning the “dollar amount the credit will cost you” – would be $150, and that the “total of payments” would be $650.  Thus, in substance, the TILA Box stated that a $500 loan to the customer would cost $650 to repay.  While the amounts set forth in the Tucker Payday Lenders’ TILA Box varied according to the terms of particular customers’ loans, they reflected, in substance, that the borrower would pay $30 in interest for every $100 borrowed.

In truth and in fact, through at least 2012, TUCKER and MUIR structured the repayment schedule of the loans such that, on the borrower’s payday, the Tucker Payday Lenders automatically withdrew the entire interest payment due on the loan, but left the principal balance untouched so that, on the borrower’s next payday, the Tucker Payday Lenders could again automatically withdraw an amount equaling the entire interest payment due (and already paid) on the loan.  With TUCKER’s approval, the Tucker Payday Lenders proceeded automatically to withdraw such “finance charges” payday after payday (typically every two weeks), applying none of the money toward repayment of principal, until at least the fifth payday, when they began to withdraw an additional $50 per payday to apply to the principal balance of the loan.  Even then, the Tucker Payday Lenders continued to assess and automatically withdraw the entire interest payment calculated on the remaining principal balance until the entire principal amount was repaid.  Accordingly, as TUCKER and MUIR well knew, the Tucker Payday Lenders’ TILA box materially understated the amount the loan would cost, including the total of payments that would be taken from the borrower’s bank account.  Specifically, for a customer who borrowed $500, contrary to the TILA Box disclosure stating that the finance charge would be $150, for a total payment of $650 by the borrower, in truth and in fact, and as TUCKER and MUIR well knew, the finance charge was $1,425, for a total payment of  $1,925 by the borrower. 

The Sham Tribal Ownership of the Business

In response to complaints that the Tucker Payday Lenders were extending abusive loans in violation of their usury laws, several states filed actions to enjoin the Tucker Payday Lenders from operating in their states.  To thwart these state actions, TUCKER devised a scheme to claim that his lending businesses were protected by sovereign immunity, a legal doctrine that, among other things, generally prevents states from enforcing their laws against Native American tribes.  Beginning in 2003, TUCKER entered into agreements with several Native American tribes (the “Tribes”), including the Miami Tribe of Oklahoma.  The purpose of these agreements was to cause the Tribes to claim they owned and operated parts of TUCKER’s payday lending enterprise, so that when states sought to enforce laws prohibiting TUCKER’s loans, TUCKER’s lending businesses would claim to be protected by sovereign immunity.  In return, the Tribes received payments from TUCKER, typically one percent of the revenues from the portion of TUCKER’s payday lending business that the Tribes purported to own.  

In order to create the illusion that the Tribes owned and controlled TUCKER’s payday lending business, TUCKER and MUIR engaged in a series of deceptions.  Among other things:

  • MUIR and other counsel for TUCKER prepared false factual declarations from tribal representatives that were submitted to state courts, falsely claiming, among other things, that tribal corporations substantively owned, controlled, and managed the portions of TUCKER’s business targeted by state enforcement actions.
  • TUCKER opened bank accounts to operate and receive the profits of the payday lending enterprise, which were nominally held by tribally owned corporations, but which were, in fact, owned and controlled by TUCKER. TUCKER spent over $100 million from these accounts on lavish personal expenses, including race cars, the expenses of a professional auto racing team, a luxury home in Aspen, Colorado, and jewelry.
  • Employees of TUCKER making payday loans over the phone told borrowers that they were operating in Oklahoma and Nebraska, where the Tribes were located, when in fact they were operating at TUCKER’s corporate headquarters in Kansas.These employees were even provided daily weather reports for the Tribes’ reservations, so that the employees could convince customers that the employees actually were calling from those locations (when they were in fact in Kansas).

These deceptions succeeded for a time, and several state courts dismissed enforcement actions against TUCKER’s payday lending businesses based on claims that they were protected by sovereign immunity.  In reality, the Tribes neither owned nor operated any part of TUCKER’s payday lending business.  The Tribes made no payment to TUCKER to acquire the portions of the business they purported to own.  TUCKER continued to operate his lending business from a corporate headquarters in Kansas, and TUCKER continued to reap the profits of the payday lending businesses, which generated over $2 billion in revenue from 2003 to 2012 – in substantial part by charging desperate borrowers high interest rates expressly forbidden by state laws.

*                      *                     *

TUCKER, 53, of Leawood, Kansas, and MUIR, 44, of Overland Park, Kansas, are each charged with conspiring to collect unlawful debts in violation of RICO, which carries a maximum term of 20 years in prison, three counts of violating RICO’s prohibition on collecting unlawful debts, each of which carries a maximum term of 20 years in prison, and five counts of violating the Truth in Lending Act, each of which carries a maximum term of one year in prison.  The statutory maximum sentences are prescribed by Congress and are provided here for informational purposes only, as any sentences the defendants receive will be determined by the Court.  The indictment also seeks to forfeit from TUCKER and MUIR the proceeds and property derived from their alleged crimes, including, among other things, numerous bank accounts, a vacation home in Aspen, Colorado, six Ferrari race cars, four Porsche automobiles, and a Learjet airplane.

Mr. Bharara praised the outstanding investigative work of the IRS and the FBI.  Mr. Bharara also thanked the Criminal Investigators at the United States Attorney’s Office, and the Federal Trade Commission, for their assistance with the case.

Mr. Bharara further noted that the investigation remains ongoing.

If you believe you were a victim of this crime, including a victim entitled to restitution, and you wish to provide information to law enforcement and/or receive notice of future developments in the case or additional information, please contact the Victim/Witness Unit at the United States Attorney’s Office for the Southern District of New York, at (866) 874-8900.  For additional information, go to:

http://www.usdoj.gov/usao/nys/victimwitness.html.

The prosecution is being handled by the Office’s Complex Frauds and Cybercrime Unit.  Assistant U.S. Attorneys Niketh Velamoor and Hagan Scotten are in charge of the prosecution.

The charges contained in the Indictment are merely accusations, and the defendants are presumed innocent unless and until proven guilty.

 

[1] As the introductory phrase signifies, the entirety of the text of the Indictment, and the description of the Indictment set forth herein, constitute only allegations, and every fact described should be treated as an allegation.

16-035
Updated February 11, 2016