We just spoke at the Alaska Bar Association — Bankruptcy Section on the issue of the Alaska usury statute. We had less than two hour notice to prepare for the presentation. The materials are available at the Bar Office.
The attendees seemed surprised to learn that the Cox v. Cooper decision actually doesn’t have very wide sweeping effect. There are seven state statutes that exempt whole classes of creditors and transactions from the decision. Two Federal acts also limit the decisions scope: The Banking Act of 1864 and the Depository Institutions and Deregulation and Monetary Control Act of 1980. These two acts exempt all federal banks and state banks that compete against federal banks from state regulation. Add to that the Marquette National Bank v. First of Omaha Service Corp. and Smiley v. Citibank decisions and all interest and fees for banks are exempt from state regulation.
The Cox v. Cooper decision only concerns local Alaska credit between private parties. The sky is not falling. Even though the creditors bar insists that it is. I wonder how much money the local and national banks will pay in fees for amicus briefs on a local issue with no bearing on their operations? Indeed, regulating hard money lenders could actually send more business to the banks.
Thank you for the invite, Michelle Boutin, Chair of the Alaska Bar Association — Bankruptcy Law Section.
A superior court abuses its discretion by making a decision that is arbitrary, capricious, manifestly unreasonable, or . . . stem[s] from an improper motive. The court uses the clearly erroneous standard when reviewing factual findings, including findings regarding a party’s income, imputation of income, and voluntary underemployment. Factual findings are clearly erroneous when, after reviewing the record as a whole, the court is left with a definite and firm conviction that a mistake has been made. The court reviews a superior court’s interpretation of the civil rulesand the Alaska Constitutionde novo.
Based upon this standard the Supreme court reversed a superior court ruling ordering the state to certify a ballot initiative on Set netting.
The Alaska Supreme Court overruled a Superior Court’s resolution of Cross Motions for Summary Judgment. Stavenjord v. Schmidt. The case started back in 2001. The matter had been fully briefed by both parties, first on the motion for preliminary injunction and then again in cross motions for summary judgment. The Superior Court denied Stavenjord’s motion and granted the State’s motion. On appeal the Supreme court overturned the matter and sent it back to the trial court for further development.
Summary judgment motions are granted or denied based upon viewing the facts in the light most favorable to the nonmoving party. Accordingly, in cross motions for summary judgment the court doesn’t evaluate the merits of the evidence offered by the parties and make a ruling. Instead the court must look at each motion in a vacuum and view the facts against the movant. A typical result will be both sides simply lose their motions and the matter proceeds to trial on the factual issues. Where, as here, the court grants someone judgment, the appellate court reviews the opinion without deference to the trial court’s decision.
While Denlow discusses federal court procedures they are as applicable to Alaska courts. Alaska Rules 52 and 58 allow the court to resolve a matter based on the record prepared. Such a procedure in this case could have saved years of legal procedure in this case. The cost to the parties and the community for all of the legal time spent considering these issues has been and will continue to be considerable.
Stavenjord is serving time for a double homicide and was previously a bank robber. He’s litigating with the state over his desire for religious privilege in prison. The courts have interpreted a prisoner’s religious beliefs to only require the prisoner’s sincere yet personal belief. They have not required the belief to have been adopted by any formal or recognized religious group. When you expand the personal religious privilege to include food selection, public costs can escalate quickly. The cost for special meals in at least one example was four times more expensive. The prison population’s response to a prisoner’s win was mass adoption of the new religious diet. There is nothing to stop a prison from experiencing a mass adoption of individualized religious diet requirements.
Strategic use of court procedure can reduce the cost and time to resolution.