Misrepresentation Says Not Preempted: Eleventh Circuit Statutes Facing Preemption in the Education loan Case
Economic Features Viewpoints

As we’ve been tracking for over a year now, courts across the country have addressed the significant question of whether the federal laws governing federally owned or guaranteed student loans preempt state laws placing burdens on servicers of those loans. Last week, the Eleventh Circuit became the latest court to weigh in, holding in Lawson-Ross v. High Lakes High Ed. Corp. that the Higher Education Act’s (HEA) disclosure requirements do not preempt claims of affirmative misrepresentation by the loan servicer. Although court cases have come down on both sides of this dispute, this circuit-level decision marks a new chapter in the ongoing controversy.


In Lawson-Ross, the court’s preemption analysis turned on the precise claims raised by the plaintiffs. The plaintiffs (who were borrowers whose student loans were serviced by Great Lakes) had asserted claims for affirmative misrepresentation, rather than an allegation of failure to disclose. Specifically, the plaintiffs alleged that Great Lakes representatives “told them they were eligible for forgiveness of their loans through the [Public Service Loan Forgiveness Program], and only later did they discover they were not eligible-after they had already made payments that could not then be counted toward the PSLF Program.” According to the plaintiffs, Great Lakes had informed them that they were eligible for the PSLF Program and would qualify for loan forgiveness after making 120 payments, when the majority of the loans for each borrower were not federal direct loans, and thus were not eligible.

The latest plaintiffs submitted a class step issue, saying says to possess violation away from fiduciary obligations, neglect, unjust enrichment, violation regarding an implied contract, and admission of Florida’s Individual Collection Practices Operate, every premised towards the allegation they had spent many years and make money it sensed would qualify for the latest PSLF Program, simply to find out if not later.

Higher Ponds transferred to overlook the case, competing that the claims had been expressly preempted because of the Point 1098g of the HEA, and this preempts “any revelation criteria of every Condition law.” Based on High Ponds, most of the states was in fact preempted once the nondisclosure says according to the alleged inability to disclose information regarding the newest PSLF System.

Somewhat, just after Great Ponds filed its activity in order to dismiss, the fresh Institution out-of Knowledge granted the notice towards the , proclaiming that “Congress intended part 1098g in order to preempt people Condition legislation demanding loan providers to reveal circumstances or information not necessary by Federal legislation” and this any county regulations imposing “brand new restrictions into misrepresentation otherwise omission regarding point suggestions” violated section 1098g’s show preemption provision. Higher Ponds was able the latest borrowers’ states was in fact just restyled low-disclosure claims. The newest government district legal from inside the Florida arranged. Into the dismissing the fact this new district court construed the newest misrepresentations due to the fact a beneficial “inability to add right suggestions.” The plaintiffs appealed.

Eleventh Circuit – Zero Preemption

Into the attract, brand new Eleventh Circuit spotted anything in another way. In the event area 1098g expressly preempts condition laws that want even more disclosures, the latest legal think it is wasn’t to be read very generally and that “condition legislation causes of action developing of affirmative misrepresentations an excellent servicer willingly made you to definitely did not concern the subject matter-of needed disclosures enforce zero revelation standards.” The brand new legal concluded there’s zero share preemption, conflict preemption, or field preemption to have such as for instance says.

The brand new judge focused on the mandatory disclosures for fees options under the newest HEA’s section 1083(e). It figured title loans Lebanon the affirmative misrepresentation-dependent states was more in form regarding the revelation-founded states. The fresh plaintiffs just weren’t within the default and you may had been just requesting advice into the loan forgiveness applications, new judge reasoned. With respect to the allegations throughout the criticism, Great Lakes willingly offered the newest consumers untrue factual statements about its qualification on the PSLF Program, thus giving increase so you’re able to a non-preempted allege.

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