Denver District Court Rejects Western Sky Financial’s Assertion of Tribal Immunity (and Issues Sanctions for Asserting It)

Here is the opinion in State ex rel. Suthers v. Western Sky Financial LLC:

Order Granting Plaintiffs Motion for Summary Judgment

An excerpt:

Accordingly, because Defendants’ business activities are conducted off-reservation and because Defendants solicit and advertise their business in Colorado and have, in fact, entered into loan agreements with Colorado citizens, Defendants are not entitled to tribal immunity or federal preemption. Rather, based on the undisputed facts before the Court, the Court concludes that Defendants are subject to the Code’s previsions and are thereby liable for any violation thereof. Specifically, because Western Sky is not, and has never been, licensed as a supervised lender, and because unlicensed lenders are not authorized to charge a finance charge on supervised loans, Defendants’ liability for restitution to consumers of all finance charges, including penalties, on all unlicensed loans made or collected with respect to Colorado citizens, is established as a matter of law.

And, on the sanctions:

Accordingly, because Defendants tribal immunity and federal preemption arguments lack substantial justification, the State is entitled to recover its attorney’s fees expended in replying to Defendants Response insofar as the State can establish the reasonable fees incurred in addressing Defendants’ tribal immunity and preemption arguments.