WASHINGTON - Greenwood Trust Co. has asked the U.S. Supreme Court to decide whether out-of-state banks can charge late fees to borrowers.
The appeal is the first of four related petitions expected to be filed with the justices by the end of the week. The other cases involve Citibank South Dakota and MBNA America, Newark, Del.
The four cases raise the same key point: Does federal law override state rules that limit the amount of fees out-of-state banks can charge on loans?
Banking lawyers said they expect the justices to accept one of the cases at their Jan. 20-21 conference.
"I can hardly think of a banking case of more importance," said Alan Kaplinsky, a partner at Ballard, Spahr, Andrews & Ingersoll in Philadelphia, who represents Greenwood Trust. "This clearly satisfies the criteria the Supreme Court employs in deciding which cases to accept."
Greenwood Trust, a subsidiary of Dean Witter, Discover & Co., issues the Discover card. It filed the appeal on Monday. If the court takes the case, oral arguments are not likely until the fall.
The banking industry has argued that states can't regulate fees, citing provisions in the National Bank Act that prohibit states from limiting the amount of interest a bank can charge out-of-state customers.
Instead, the industry has said lenders can charge the maximum amount of fees that their home-states permit. If the high court agrees, a bank would be able to ignore laws in other states when setting fee schedules for customers in those jurisdictions. The laws of the states in which they operate would be irrelevant.
Consumer activists countered that the term "interest" does not include late fees and other charges. They also said the bank's position is fundamentally undemocratic because it gives legislatures power over residents of other jurisdictions.
The banking industry had been winning these cases until December 1994, when a Pennsylvania trial judge ruled in favor of the consumers. That decision is on appeal to the Pennsylvania Supreme Court.
Since that ruling, the state supreme courts in California and Colorado have struck down similar suits, finding banks can export the fees.
Industry officials had said these two cases should settle the issue for good. But then came the New Jersey Supreme Court, which ruled Nov. 28 against lenders.
That ruling established a clear conflict between the lower courts, virtually ensuring Supreme Court review.
Mr. Kaplinsky said the New Jersey ruling threatens any loan product offered by an out-of-state bank.
The New Jersey case also could force banks to raise interest rates to compensate for the loss of fee income, said Michael Crotty, deputy general counsel for litigation at the American Bankers Association.
Consumers would be better off if they could chose either to pay higher rates consistently or to pay late fees occasionally, he said.
While all the banks are seeking the same outcome, they can't agree on which case best presents the issue. The dispute centers on whether the justices should consider a case involving a national or a state bank.
Citibank, which plans to appeal the New Jersey decision today, wants the justices to limit their review to national banks. Lawyers following these cases said the industry would benefit if Citibank prevails because the national bank case is less complicated and presumably easier to win.
Greenwood Trust, however, asked the court to go further and rule that state banks enjoy the same right to use this provision of the National Bank Act as national banks.
Lawyers familiar with the case said this raises new, less-clear-cut issues that could sidetrack the justices.
While the four cases involve different plaintiffs, their stories are remarkably similar. The consumers had received a credit card from a bank, failed to make a payment on time, and then refused to pay the late fee.
The consumers filed class-action lawsuits, charging violations of the bank act, state consumer protection laws, and Truth-in-Lending laws.
