Daye v. Community Financial Service Centers, LLC (233 F. Supp. 3d 946, 2017)

United States District Court for the District of New Mexico 2017-01-20

Commerce and Trade

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

James O. Browning, United States District Judge

THIS MATTER comes before the Court on (i) Plaintiff’s Opposed Motion for Summary Judgment, filed on April 5, 2016 (Doc. 89 Sealed Version)(Doc. 97 Public Version)(“MSJ”); and (ii) Defendant Speedy Loan’s Motion to Extend Deadline to File Its Response to Plaintiff’s Motion for Summary Judgment, filed May 13, 2016 (Doc. 101)(“Motion to Extend Deadline”). The primary issues are: (i) whether the Court should allow Defendant Community Financial' Service Centers, LLC d/b/a Speedy Loan Speedy Loan additional time to conduct discovery before being required to respond to Plaintiff Clara Daye’s MSJ pursuant to rule 56(d) of the Federal Rules of Civil Procedure; (ii) whether all loans that Speedy Loans made were payday loans under the New Mexico Small Loan Act, N.M.S.A. 1978 §§ 58-15-2 to -34; (iii) whether every loan in which (a) Speedy Loan accepted preauthorized ACH debit authorization; and (b) the loan was to be repaid in fewer than four payments or the loan period was less than 120 days, was a payday loan; (iv) whether Speedy Loan violated the Electronic Fund Transfer Act, 15 U.S.C. §§ 1693í-93r (“EFTA”), by requiring each borrower to preauthorize EFTs as a condition for making a loan; (v) whether Speedy Loan violated the Truth-in-Lending Act, 15 U.S.C. §§ 1601-67f (“TILA”), by misrepresenting finance charges and totals of payments for its loans; (vi) whether Speedy Loan violated the New Mexico Unfair Practices Act, N.M.S.A. 1978 §§ 57-12-1 to -26 (“UPA”), by intentionally reporting different totals of payments in the loans’ TILA Box and loan’s payment schedule; and (vii) whether, if the Court deems Speedy Loan to have violated any of these statutes, the Court should award Daye and respective Subclass members summary judgment and damages. On the first motion, because (i) Daye did not oppose Speedy Loan’s Motion to Extend Deadline at the motion hearing; (ii) the deadline extension will not cause unnecessary delay in the case; and (iii) Speedy Loan provided an affidavit “explain[ing] why facts precluding summary judgment [could not] be presented,” Fed. R. Civ. P. 56(d), the Court grants the Motion to Extend Deadline, extending Speedy Loan’s deadline to respond to Daye’s motion for summary judgment until one week from the date that Speedy Loan receives the deposition transcripts. On the second motion, the Court (i) grants Daye’s motion for summary judgment with respect to liability on her claim under the EFTA, and awards damages to EFTA subclass members in the amount of $12,693.40; (ii) grants Daye’s motion for summary judgment with respect to liability on her claim under TILA, and awards damages to TILA subclass members in the amount of $12,693.40; and (iii) grants Daye’s motion for summary judgment on her claim under the UPA with respect to liability, but declines to award UPA damages at this time.

FACTUAL BACKGROUND

“Plaintiff Clara Daye is a ‘consumer’ as defined by the TILA, 15 U.S.C. § 1602(⅞) and Regulation Z, 12 C.F.R. § 226.2(a)(ll).” MSJ ¶ 1, at 4 (stating this fact). See Defendant Speedy Loan’s Response to Plaintiff’s Opposed Motion for Summary Judgment ¶ 1, at 4, filed July 1, 2016 (Doc. lll)(“Response”)(not disputing this fact). Clara Daye “is a ‘consumer’ as defined by the EFTA, 15 U.S.C. § 1693a(6).” MSJ ¶ 1, at 4 (stating this fact). See Response ¶ 1, at 4 (not disputing this fact). “Defendant Community Financial Service Centers, LLC, d/b/a Speedy Loan ... is a Delaware LLC with its principal place of business in Wisconsin.” MSJ ¶ 2, at 4 (stating this fact). See Response ¶ 1, at 4 (not disputing this fact).

Speedy Loan “operates a payday loan store in Gallup and eleven other locations in New Mexico.” MSJ ¶ 2, at 4 (stating this fact). See Response ¶ 2 (not disputing this fact). Speedy Loan “is a ‘creditor,’ as defined in the TILA, 15 U.S.C. § 1602(g), and Regulation Z, 12 C.F.R. § 226.2(a)(17).” MSJ ¶ 2, at 4 (stating this fact). See Response ¶ 2, at 4 (not disputing this fact). “Speedy has a net worth of [a sum certain] as of December 31, 2013, and of [a sum certain] as of December 31, 2014.” MSJ ¶ 3, at 4 (stating this fact). See Response ¶ 3, at 4 (not disputing this fact). Speedy Loan “is a profitable business.” MSJ ¶ 4, at 4 (stating this fact). See Response ¶ 4, at 4 (not disputing this fact). Speedy Loan’s “owners received more than [a sum certain] in 2014.” MSJ ¶ 4, at 4 (stating this fact). See Response ¶ 4, at 4 (not disputing this fact).

“On August 23, 2013, Speedy loaned Ms. Daye $300.” MSJ ¶5, at 4 (stating this fact). See Response ¶ 5, at 4 (not disputing this fact). “As of August 23, 2013, Ms. Daye received monthly direct deposit pension payments and weekly direct deposit wage payments from part-time home health care work.” MSJ ¶ 6, at 5 (stating this fact). See Response ¶6, at 4 (not disputing this fact). Speedy Loan “was aware of these income sources and amounts.” MSJ ¶ 6, at 5 (stating this fact). See Response ¶ 6, at 4 (not disputing this fact). “On October 21, 2013, Speedy loaned Ms. Daye $300 in a renewal of the August loan.” MSJ ¶ 7, at 5 (stating this fact). See Response ¶ 7, at 4 (not disputing this fact). Daye “paid off the October loan.” MSJ ¶ 8, at 5 (stating this fact). See Response ¶ 8, at 4 (not disputing this fact). “On February 15, 2014, the parties entered into a new loan agreement.” MSJ ¶ 9, at 5 (stating this fact). See Response ¶ 9, at 4 (not disputing this fact). “On May 23, 2014, Speedy renewed Ms. Daye’s February loan.” MSJ ¶ 10, at 5 (stating this fact). See Response ¶ 10, at 4 (not disputing this fact). Speedy Loan “used the ACH system to withdraw money from Ms. Daye’s bank account to pay her loans.” MSJ ¶ 11, at 5 (stating this fact). See Response ¶ 11, at 4 (not disputing this fact).

“Since at least August 22, 2010, Speedy has offered a single loan product, which it calls an ‘installment loan.’ ” MSJ ¶ 12, at 5 (stating this fact). See Response ¶ 12, at 4 (not disputing this fact). Speedy Loan “entered into 31,802 loans in New Mexico between August 22, 2010 and August 22, 2014.” MSJ ¶ 13, at 5 (stating this fact). See Response ¶ 13, at 4 (not disputing this fact). “Before New Mexico enacted legislation regulating payday loans, Speedy referred to its loan product as a ‘payday loan.’ ” MSJ ¶ 14, at 6 (stating this fact). See Response ¶ 14, at 4 (not disputing this fact). “As of August, 2014, Speedy’s New Mexico website continued to state that ‘Speedy Loan is the only place I will go for a Pay-Day Loan.’ ” MSJ ¶ 15, at 6 (stating this fact). See Response ¶ 15, at 4 (not disputing this fact). Speedy Loan’s “loans were made in the regular course of its trade or commerce.” MSJ ¶ 16, at 6 (stating this fact). See Response ¶ 16, at 5 (not disputing this fact).

“In order to qualify for a loan, Speedy required customers to have a bank account from which payments could be withdrawn through electronic fund transfer.” MSJ ¶ 17, at 6 (stating this fact). See Response ¶ 17, at 5 (not disputing this fact). “As part of the loan application process, Speedy required customers, including Ms. Daye, to provide the account number and routing number of an account that could be used for electronic fund transfer.” MSJ ¶ 18, at 6 (stating this fact). See Response ¶ 18, at 5 (not disputing this fact). “If credit was approved, Speedy required customers to sign a loan contract in order to receive a loan.” MSJ ¶ 19, at 7 (stating this fact). See Response ¶ 19, at 5 (not disputing this fact).

Every loan contract entered into between August 21, 2010 and August 21, 2014, including Ms. Daye’s contracts, contained the following terms:

On or about the day each installment payment becomes due, you authorize us to affect one or more ACH debit entries to your Account at the Bank. You acknowledge that the account on which the Check/ACH Authorization is drawn is a legitimate, open, an active account.

This document represents the final agreement between the creditor and you and may not be contradicted by evidence of any alleged oral agreement.”

MSJ ¶20,. at 7 (stating this fact). See Response ¶20, at 5 (not disputing this fact). “After obtaining the customer’s signature on the loan contract, Speedy would request each customer’s signature on a separate ‘PPD/ACH Authorization’ form, specifying the schedule of automatic debits from the customer’s bank account.” MSJ ¶ 21, at 7 (stating this fact). See Response ¶ 21, at 5 (not disputing this fact). Speedy Loan “used the PPD/ACH Authorization forms in an internal filing system as reminders of the dates upon which employees should use Speedy’s computer system to withdraw money from the borrowers’ [sic] bank account.” MSJ ¶ 22, at 8 (stating this fact). See Response ¶22, at 5 (not disputing this fact).

“Between August 22, 2010 and August 22, 2014, Speedy entered into 12,189 loans in which the loan was to be repaid in fewer than four payments, or the term of the loan was less than 120 days.” MSJ ¶ 23, at 8 (stating this fact). See Response ¶ 23, at 5 (not disputing this fact). “All of Ms. Daye’s contracts were to be repaid in less than 120 days.” MSJ ¶ 23, at 8 (stating this fact). See Response ¶ 23, at 5 (not disputing this fact). “Of these 12,189 loans, Speedy attempted to electronically withdraw money from the borrower’s bank account in 11,702 loans, including all of Ms. Daye’s loans.” MSJ ¶ 24, at 8 (stating this fact). See Response ¶ 24, at 5 (not disputing this fact).

Speedy Loan “has known of the New Mexico Small Loan Act’s provisions governing payday loans since at least August 22, 2010.” MSJ ¶ 25, at 9 (stating this fact). See Response ¶ 25, at 5 (not disputing this fact). Speedy Loan “never offered borrowers the right to enter an unsecured payment plan.” MSJ ¶26, at 9 (stating this fact). See Response ¶ 26, at 5 (not disputing this fact). Speedy Loan “never verified that the pi’oposed loan agreement was permissible using the consumer reporting service certified by the Financial Institutions Division of the New Mexico Regulation and Licensing Department, as required by N.M.S.A. 1978 § 58-15-37 and N.M.A.C. § 12.18.7.14.” MSJ ¶ 27, at 9 (stating this fact). See Response ¶ 27, at 5 (not disputing this fact). Speedy Loan “never included the disclosures required by N.M.S.A. 1978 § 58-15-38 in its agreements.” MSJ ¶ 28, at 9 (stating this fact). See Response ¶ 28,-at 5 (not disputing this fact). Speedy Loan “did not offer its borrowers the right to rescind in any of its loan documents.” MSJ ¶ 29, at 9 (stating this fact). See Response ¶ 29, at 5 (not disputing this fact). “All of Speedy’s loans had repayment periods exceeding 35 days.” MSJ ¶ 30, at 9 (stating this fact). See Response ¶ 30, at 5 (not disputing this fact).

“In many cases, Speedy charged interest rates dramatically above the rate permitted by New Mexico law for payday loans.” MSJ ¶31, at 9 (stating this fact). See Response ¶31, at 5 (not disputing this fact). “Between August 22, 2010 and August 22, 2014, 31,074 of Speedy’s 31,082 loans charged more than the legal rate for payday loans.” MSJ ¶32, at 10 (stating this fact). See Response ¶32, at 5 (not disputing this fact). “Between August 22, 2010 and August-22, 2014, Speedy collected $7,340,471.14 above the legal rate for payday loans.” MSJ ¶ 33, at 10 (stating this fact). See Response ¶ 33, at 5 (not disputing this fact). “With regard to the 11,702 loans in which the loan was to be repaid in fewer than four payments, or the term of the loan was less than 120 days, and in which Speedy attempted to electronically withdraw money from the borrower’s bank account, Speedy charged $1,635,092.05 above the legal rate.” MSJ ¶ 34, at 10 (stating this fact). See Response ¶ 34, at 5 (not disputing this fact).

Speedy Loan “frequently entered into renewals of its payday loans.” MSJ ¶ 35, at 10 (stating this fact). See Response ¶ 35, at 5 (not disputing this fact). “Since at least August 22, 2010, Speedy has been aware of the Truth in Lending Act.” MSJ ¶ 36, at 10 (stating this fact). See Response ¶ 36, at 5 (not disputing this fact). “In all of Speedy’s loan contracts between August 22, 2013 and August 22, 2014, in the Payment Schedule under the heading ‘When Payments Are Due,’ the contract stated ‘Payments are due on your payday.’” MSJ ¶ 37, at 11 (stating this fact). See Response ¶37, at 5 (not disputing this fact). “In addition, in all of Speedy’s loan contracts between April 10, 2014 and August 22, 2014, in the Payment Schedule under the heading ‘Number of Payments,’ the contract did not state a number, but instead stated an interval such as ‘monthly.’ ” MSJ ¶ 38, at 11 (stating this fact). See Response ¶ 38, at 5 (not disputing this fact). “In all of Speedy’s loan contracts between August 22, 2010 and August 22, 2014, the contract stated “PROMISE TO PAY: You promise to pay to Speedy Loan Corp. (Creditor), each installment payment as it becomes due as shown above in the Payment Schedule.’ ” MSJ ¶ 39, at 11 (stating this fact). See Response ¶ 39, at 6 (not disputing this fact). “In each loan, Speedy disclosed the Total of Payments, and represented to the borrower that the Total of Payments was ‘the amount you will have paid when you have made all scheduled payments.’ ” MSJ ¶ 40, at 11 (stating this fact). See Response 1140, at 6 (not disputing this fact).

In “25,976 loans ... between August 22, 2010 and August 22, 2014, of which 5,535 were between August 22, 2013 and August 22, 2014, Speedy disclosed a Total of Payments lower than the sum of the payments disclosed in the Payment Schedule.... ” MSJ ¶ 41, at 11—12 (stating this fact). In all such loans, the Finance Charge- was under-disclosed by the same amount as the as. the Total of Payments was under-disclosed.” MSJ ¶ 42, at 12 (stating this fact); “The total amount by which the Total of Payments and Finance- Charge were under-disclosed in loans between August 22, 201-0 and August 22, 2014 was $783,282.50.”-MSJ ¶ 43 (stating this fact).

“During the time period of August 22, 2010 through August 22,2014, Plaintiff and at least two other Speedy Loan customers, Luana Lorenzo Gaco and Charles Robert Foster, procured loans from Speedy loans [sic] ....” Response ¶ a, at 6 (stating.this fact). “At all times relevant to this - case, Plaintiff [Daye], Ms. Gaco, and Mr. Foster did not want to take out loans that they were going to have to pay back -within thirty-five (35) days.” Response Kb, at 7 (stating this fact). “At all times relevant to this case, Plaintiff [Daye], Ms. Gaco and Mr. Foster wanted to take out loans from Speedy Loan that were paid back in payments over about four months.” Response ¶ c, at 7 (stating this fact). “At all times relevant to this case, each of the four (4) loans borrowed by Plaintiff [Daye] included a Federal Truth-in-Lending Disclosure Statement (‘Disclosure Statement’), which contained a ‘TILA Box’ stating the Annual Percentage Rate, Finance Charge, Amount Financed, and Total of Payments.” Response ¶ d, at 7 (stating this fact). See Reply ¶ d, at 5 (not disputing this fact). “At all times relevant to this case, Plaintiff [Daye], Ms. Gaco and Mr. Foster looked at the Installment Loan Payment Authorization Chart (‘Payment Schedule’) to determine their payment amounts and the dates on which the payments would be made.” Response ¶ e, at 7 (stating this fact). “The amount reflected under the “Total of Payments’ on the TILA boxes on Plaintiff [DayeJ’s Federal Truth-In-Lending Disclosure Statements equaled the total amount of the payments listed on the Payment Schedules for each individual loan.” Response ¶⅞ at 7 (stating this fact). “With regard to her loans from Defendant, Plaintiff [Daye] testified that she did not intend to take out loans that required her to pay a flat fee for a finance charge as opposed to one that would be less if she paid the loan off early.” Response ¶ g, at (stating this fact). “Ms. Gaco testified that ‘[I] felt like it was my responsibility to understand, and if I didn’t, then it was my fault, not theirs, because I felt like they were real thorough in explaining everything....’” Response Hh, at 8 (stating this fact). “Mr. Foster testified that ‘[I] have never had a problem with them ... and they’ve never misled me in any way.’ ” Response ¶⅜ at 8 (stating this fact). “When [Foster] get[s] the loan, they give [him],a printout of how it breaks down on how much [he is] borrowing, what the interest rate’s going to be and what it works out to be taken from [his] account every month and for how many months it will be.” Response ¶ k, at 8 (stating this fact). Reply ¶⅛ at 7 (not disputing this fact). “At all times relevant to this case, Plaintiff [Daye], Ms. Gaco and Mr. Foster could change the electronic withdrawal and make their loan payments in cash.” Response ¶ m, at 8 (stating this fact). “ ‘[Speedy Loan] said if [Foster] want[ed]. to switch it over to coming in and making the payment in person at their office, I could do that.” Response ¶ n, at 8 (stating this fact). “‘They give me that option when they’re asking me how I want to make payments. They either ask if I want to come in and make the payments in person or have it automatically withdrawn.’ ” Response ¶ o, at 9 (stating this fact). “Plaintiff testified that she wanted Speedy Loan to take the payments out of her bank account.” Response ¶p, at 9 (stating this fact). “Celicia Linkin, the manager of the Gallup Speedy Loan store for the past five years, testified that ‘[i]f a customer doesn’t want to have payment taken out of their account ... they need to come in a day before their payment is set up by 1:30.’ ” Response ¶ q, at 9 (stating this fact). “Ms. Linkin also testified that Speedy Loans makes ‘[o]nly installment loans.’” Response Hr, at 9 (stating this fact). “Jessica Hood, a customer service representative for Speedy Loan since 2012, testified that Speedy Loan makes ‘installment loans.’ ” Response ¶ s, at 9 (stating this fact). “Richard Barr, the owner of Community Financial Services, testified that Speedy Loan now makes installment loans which ‘[gave] the public a better product for less money ... [it] gives the customer a longer period to pay them back and it’s less pressure on them.’ ” Response ¶ t, at 9 (stating this fact).

PROCEDURAL BACKGROUND

In its Memorandum Opinion and Order, filed February 9, 2016 (Doc. 82), the Court granted Daye’s motion to certify a class action under rule 23 of the Federal Rules of Civil Procedure, and to certify four subclasses: (i) a “Payday Loan Subclass”; (ii) an “EFTA Subclass”; (iii) a “TILA Subclass”; and (iv) a “Deceptive Disclosure Subclass.” Memorandum Opinion and Order 68, filed February 9, 2016 (Doc. 82)(“Class Certification MOO”). On April 5, 2016, Daye and members of the Payday Loan, EFTA, TILA, and Deceptive Disclosure Subclasses moved for summary judgment on the issues of Speedy Loan’s liability for alleged EFTA, TILA, and UPA violations. On May 13, Speedy Loan moved to extend the deadline for it to respond to Daye’s MSJ. Before it addresses the legal questions involved in this case, the Court here recapitulates Daye’s and Speedy Loan’s arguments as they presented them in case filings and at the motion hearing. It refers to prior proceedings only insofar as referring to them is directly relevant to the MSJ or to Speedy Loan’s Motion to Extend Deadline.

1. The MSJ.

Daye filed the public version of the MSJ on April 28, 2016. See MSJ at 1. Daye contends that Speedy Loan flouted federal and state law by knowingly making tens of thousands of illegal payday loans. See MSJ at 1. Specifically, Daye alleges that Speedy the EFTA; TILA; the UPA; and the New Mexico Small Loan Act, N.M.S.A. 1978, §§ 58-15-1 to -31 (“Small Loan Act”). See MSJ at 1. Daye asserts that there is no genuine dispute as to material fact, and asks the Court to hold a Speedy Loan responsible for its actions. See MSJ at 1.

Daye requests that the Court make seven rulings. See MSJ at 1-3. First, Daye contends that, as to the Payday Loan Subclass, the Court should rule that all loans that Speedy Loan made to class members, beginning four years before Daye filed this action, were payday loans under New Mexico law. See MSJ at 1. In the alternative, Daye asks the Court to rule that every loan, beginning four years before Daye filed this action, in which Speedy Loan accepted preauthorized debit authorization, and either the loan was to be repaid in fewer than four payments, or the loan was less than 120 days, was a payday loan. See MSJ at 2.

Second, Daye contends that, if the Court concludes that Speedy Loan conditioned its loans on borrowers agreeing to ACH withdrawal, then Speedy Loan is liable in the amount of $7,340,471.14 to all Payday Loan Subclass members. See MSJ at 2. Daye asks for a ruling that, if the alternative conclusion is made, Speedy Loan is liable in the amount of $1,635,092.05, with additional damages/restitution to be assessed. See MSJ at 2. Third, Daye asks the Court to enjoin Speedy Loan from ongoing debt collection above the legal rate, from continuing to violate the Small Loan Act, and from adverse credit reporting. See MSJ at 2. Fourth, Daye asks the Court to conclude that Speedy Loan violated the EFTA with regard to every member of the EFTA Subclass, and to make Speedy Loan liable to EFTA Subclass members in a redacted amount. See MSJ at 2. Fifth, Daye asks the Court to conclude that Speedy Loan violated the TILA with regard to every member of the TILA Subclass, and to make Speedy Loan liable to the TILA Subclass in a redacted amount. See MSJ at 2. Sixth, Daye asks the Court to conclude that Speedy Loan engaged in unfair and deceptive practices in violation of the UPA with regard to all members of the Deceptive Disclosure Subclass, and to make Speedy Loan liable to the Deceptive Disclosure Subclass in the amount of $783,282.50. See MSJ at 2-3. Last, Daye asks the Court to award her costs and reasonable attorney fees. See MSJ at 3.

2. Brief in Support of the MSJ.

Daye also filed the public version of a separate Brief in Support of Plaintiffs Opposed Motion for Summary Judgment on April 28, 2016. See Brief in Support of Plaintiffs Opposed Motion for Summary Judgment, filed April 28, 2016 (Doc. 98)(“Supportive MSJ Brief’). According to Daye, Speedy Loan’s loans were payday loans under New Mexico law. See Supportive MSJ Brief at 12. Daye argues that, despite Speedy Loan’s “transparent attempt” to disguise its loans as “installment loans,” the facts are clear that the loans meet the definition of “payday loan” under New Mexico law. Supportive MSJ Brief at 12. Quoting at length from the New Mexico Small Loan Act, Daye asserts that a payday loan

means a loan in which the licensee accepts a personal check or debit authorization tendered by the consumer and agrees in writing to defer presentment of that check or use of the debit authorization until the consumer’s next payday or another date agreed to by the licensee and the consumer and:

(1) includes any advance of money or arrangement or extension of credit whereby the licensee, for a fee, finance charge or other consideration:

(a) accepts a dated personal check or debit authorization from a consumer for the specific purpose of repaying a payday loan; [or]

(b) agrees to hold a dated personal check or debit authorization from a consumer for a period of time prior to negotiating or depositing the personal check or debit authorization

(2) does not include:

(b) installment loans;

E. “installment loan” means a loan that is to be repaid in a minimum of four successive substantially equal payment amounts to pay off a loan in its entirety with a period of no less than one hundred twenty days to maturity. “Installment loan” does not mean a loan in which a licensee requires, as a condition of making the loan, the use of post-dated checks or debit authorizations for repayment of that loan[.]

Supportive MSJ Brief at 13 (quoting N.M.S.A. 1978 § 58-15-2 (emphasis added in the brief)). Daye recapitulates the statutory text as “a payday loan is any loan (1) in which a preauthorized debit authorization is a condition of the loan, OR (2) in which a preauthorized debit authorization is accepted and either the loan is repaid in fewer than four payments, or the term of the loan is less than 120 days.” Supportive MSJ Brief at 13 (emphases in the brief).

Daye maintains that every loan contract that Speedy Loan made was conditioned on the borrower providing debit authorization. See Supportive MSJ Brief at 13. Daye says that every - customer who received a loan from Speedy Loan was required to provide the account number and routing number for an account from which payments could be withdrawn electronically. See Supportive MSJ Brief at 13-14. According to Daye, Speedy Loan’s Policy and Procedure Manual goes into great detail to describe exactly how Speedy obtained and effectuated debit authorizations in all of its loans. See Supportive MSJ Brief at 14.

Daye speculates that Speedy Loan will argue that it only requested—he., did not require—borrowers to permit repayment by means of preauthorized debt transactions. See Supportive MSJ Brief at 14. Daye further speculates that Speedy Loan will point to a clause hidden in the fíne print of a separate document, the “PPD/ACH Authorization,” stating that “[t]his authorization is not required as a condition of the loan, I understand that I may cancel this authorization by providing written notice to Speedy Loan at least three (3) business days prior to the payment due date.” Supportive MSJ Brief at 14. As Daye sees it, such an argument would be unavailing for two reasons. See Supportive MSJ Brief at 14-15. First, according to Daye, the PPD/ACH Authorization is not a part of the loan contract, nor is it incorporated by reference into the loan contract, meaning that it cannot override unambiguous terms in Speedy Loan’s integrated form contracts. See Supportive MSJ Brief at 14. Second, according to Daye, the fact that Speedy Loan allowed borrowers to revoke the debit authorization is irrelevant to whether debit authorization was a requirement of the loan. See Supportive MSJ Brief at 14-15.

Daye then asserts that Speedy Loan failed in its attempt to exempt itself from the Small Loan Act by disguising its payday loans as “installment loans.” See Supportive MSJ Brief at 15. Beneath the mask, Daye says, the loans continued to contain the same abusive terms that the legislature had targeted. See Supportive MSJ Brief at 15. Daye mocks the “ruse” as “particularly shabby” in light of the fact that Speedy Loan’s website continued to feature customers bragging that “ ‘Speedy Loan is the only place I will go for a PayDay Loan.’ ” Supportive MSJ Brief at 15.

Daye then hedges with a new line of argument in support of the same point that Speedy Loan’s loans were payday loans under New Mexico law. See Supportive MSJ Brief at 15. According to Daye, every loan (i) for which Speedy Loan accepted preauthorized debit authorization; and (ii) either the loan was to be repaid in fewer than four payments, or the term of the loan was less than 120 days, was a payday loan. See Supportive MSJ Brief at 15. According to Daye, Speedy Loan admits that at least 11,702 of its loans meet these criteria, and that another 487 loans may meet these criteria. See Supportive MSJ Brief at 16. Daye says that the Court, therefore, should conclude that at least this subset of loans was payday loans in the event that Speedy Loan prevails on the remainder of this argument. See Supportive MSJ Brief at 15.

Daye then switches gears, arguing that none of Speedy Loan’s loans between August 22, 2010, and August 22, 2014, complied with the Small Loan Act. See Supportive MSJ Brief at 16. Daye says that seven facts support this argument. See Supportive MSJ Brief at 16-17. First, according to Daye, Speedy Loan never offered borrower the right to enter an unsecured payment plan, as N.M.S.A. 1978 § 58-15-35 requires. See Supportive MSJ Brief at 16. Second, according to Daye, Speedy Loan never used the certified consumer reporting service to confirm that its borrowers were eligible to receive payday loans, as N.M.S.A. 1978 § 58-15-37 and N.M.A.C. § 12.18.7.14 require.. See Supportive MSJ Brief at 16. Third, according to Daye, in its loan agreements, Speedy Loan never included the disclosures warn-mg consumers what N.M.S.A. 1978 § 58-15-88 requires. See Supportive MSJ Brief at 16. Fourth, according to Daye, Speedy Loan did not offer its borrowers the right to rescind in any of its loan documents, as N.M.S.A. 1978 § 58-15-32(c) requires. See Supportive MSJ Brief at 16. Fifth, according to Daye, all of Speedy Loan’s loans had repayment periods exceeding thirty-five days, in violation of N.M.S.A. 1978 § 58-15-32(B). See Supportive MSJ Brief at 16. Sixth, according to Daye, 99.97% of Speedy Loan’s loans charged interest rates above the rate that New Mexico law permits, resulting in the collection of more than seven million dollars above the legal rate set in N.M.S.A. 1978 § 58-15-33(A)-(D), See Supportive MSJ Brief at 16. Seventh, according to Daye, Speedy Loan frequently entered into renewals of its payday loans, in violation of N.M.S.A. 1978 § 58-15-34(A). See Supportive MSJ Brief at 17.

Daye also asserts that damages or restitution in the amount of any amounts Speedy Loan collected above the legal rate is the appropriate remedy. See Supportive MSJ Brief at 17. Daye maintains that Speedy Loan’s allegedly illegal loans are void under both the Small Loan Act, for the aforementioned reasons, and void under the UPA, because the UPA (i) prohibits economic exploitation of others; (ii) prohibits deceptive trade practices; and (iii) applies to both misrepresentations and material omissions. See Supportive MSJ Brief at 17. According to Daye, the ,UPA provides a non-exhaustive list of unfair or deceptive trade practices, which includes:

(11) making false or misleading statements of fact concerning the price of goods or services ...

(14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;

(15) stating that a transaction involves rights, remedies or obligation that - it does not involve ....

Supportive MSJ Brief at 17-18 (quoting N.M.S.A. 1978 § 57-'12-2(D)). Daye says that Speedy Loan omitted multiple legally required terms in every loan. See Supportive MSJ Brief at 18. Daye asserts that Speedy Loan routinely represented that it was entitled to charge a rate dramatically above the legal rate, and that, therefore, Speedy Loan’s loans were unfair and deceptive. See Supportive MSJ Brief at-18. Furthermore, Daye says, the UPA prohibits “unconscionable trade practices," which it defines to include a practice in the extension of credit that “results in a gross disparity between the value received by a person and the price paid." Supportive MSJ Brief (quoting N.M.S.A. 1978 § 57-12-2(E). As Daye sees it, where Speedy Loan’s payday loans each violated the Small Loan Act in multiple ways—including Finance Charges manifold the legal rate—the loans are substantively unconscionable in New Mexico. See Supportive MSJ Brief at 18. Daye asserts that the appropriate ■ remedy for the class is to strike the unconscionable terms from the contracts and “enforce the remainder of the contract without the unconscionable term.” Supportive MSJ Brief at 18 ■ (quoting State ex rel. King v. B & B Inv. Grp., Inc., 2014-NMSC-024, ¶ 49, 329 P.3d 658). Daye calculates the resulting refund as $7,340,471.14, an amount equal to any amounts collected above 15.50 per $100.00 loaned, plus fifty cents per loan. See Supportive MSJ Brief (citing N.M.S.A. 1978 § 58-15-33(A)-(D)).

Daye also asserts that injunctive relief is appropriate, as restitution of illegally collected amounts will not fully remedy Speedy Loan’s legal violations.i-See Supportive MSJ Brief at 18-19, Because Speedy Loan’s unlawful loans also may have resulted in inaccurate and damaging credit reporting, according to Daye, the UPA provides for injunctive relief “under the principles of equity and on terms that the court considers reasonable.” Supportive MSJ Brief (quoting N.M.S.A. 1978 § 57-12-10). Daye says that the Court should enjoin Speedy Loan (i) from failing to follow the New Mexico Small Loan Act; (ii) from collecting any amounts from class members above the legal rate for payday loans; and (iii) from failing to correct any adverse credit reporting relating to payments above the legal rate. See Supportive MSJ Brief at 19.

Moving on to another argument, Daye says that all loans to members of the EFTA Subclass violated the EFTA. See Supportive MSJ Brief at 19. According to Daye, all of Speedy Loan’s loans were unlawfully conditioned upon repayment by means of preauthorized electronic fund transfer. See Supportive MSJ Brief at 19. Daye says that Congress enacted the EFTA to protect individual consumer rights in electronic systems to transfer funds. See Supportive MSJ Brief (citing 15 U.S.C. § 1693(b)). As Daye reads the EFTA, it is illegal to condition the extension of credit to a consumer on such consumer’s repayment by means of preau-thorized electronic fund transfers. See Supportive MSJ Brief (citing 15 U.S.C. § 1693(k)). Daye states that, for these reasons, Speedy Loan conditioned all its loans between August 22, 2010, and August 22, 2014, on repayment by means of preau-thorized electronic fund transfer. See Supportive MSJ Brief at 19.

Daye indicates that Speedy Loan is liable for damages under the EFTA. See Supportive MSJ Brief at 19. Daye asserts that the EFTA provides for statutory damages in class actions, with a maximum of “the lesser of $500,000 or 1 per centum of the net worth of the defendant,” based on (i) the frequency, persistence, and nature of noncompliance; (ii) the resources of the defendant; (iii) the number of persons adversely affected; and (iv) the extent to which the noncompliance was intentional. See Supportive MSJ Brief at 19-20 (quoting 15 U.S.C.A § 1693m). Based on these criteria, Daye says, the Court should award her one percent of Speedy Loan’s “mean average” net worth during 2013 and 2014. Supportive MSJ Brief at 20. According to Daye, this “modest recovery” would impose no hardship on Speedy Loan. Supportive MSJ Brief at 20. Moreover, Daye contends that it is necessary to impose the full statutory award, because (i) Speedy Loan violated the EFTA in every loan that it made for at least four years; (ii) Speedy Loan’s violations were not technical or de minimis; (iii) Speedy Loan built its entire business model on the illegal loans; and (iv) Speedy Loan violated the EFTA with full knowledge and attempted to camouflage its actions. See Supportive MSJ Brief at 20.

Daye also asserts that all Speedy Loan’s loans to TILA Subclass members violated TILA. See Supportive MSJ Brief at 20. According to Daye, TILA requires clear, conspicuous, and meaningful disclosures of financial terms, in a precise format. See Supportive MSJ Brief at 20 (citing 15 U.S.C. § 1632, 1638)). Daye avers that all persons who borrowed from Speedy Loan between August 22, 2013, and August 22, 2014, entered into contracts that violated TILA in at least two ways. See Supportive MSJ Brief at 20. First, TILA requires that a loan’s payment schedule be disclosed, including “[t]he number, amount, and due dates or period of payment scheduled to repay the total of payments.” Supportive MSJ Brief at 21 (quoting 15 U.S.C. § 1638(a)(6) and citing 12 C.F.R. § 1026.18(g)). Daye adduces guidance from the Bureau of Consumer Financial Protection on how to interpret such language:

Section 1026.18(g) requires creditors to disclose the timing of payments. To meet this requirement, creditors may list all of the payment due dates. They also have the option of specifying the “period of payments” scheduled to repay the obligation. As a general rule, creditors that choose this option must disclose the payments intervals or frequency, such as “monthly” or “biweekly,” and the calendar date that the beginning payment is due. For example, a creditor may disclose that payments are due “monthly beginning on July 1, 1998.” This information, when combined with the number of payments, is necessary to define the repayment period and enable a consumer to determine all of the payment due dates.

Supportive MSJ Brief at 21-22 (quoting Bureau of Consumer Financial Protection, Official Interpretations § 1026.18(g)(4)(i))(emphasis added in the Supportive MSJ Brief). According to Daye, court decisions from other circuits also require the creditor to list the first payment’s calendar date and the frequency of payments. See Supportive MSJ Brief at 22 (citing Hamm v. Ameriquest Mortgage Co., 506 F.3d 525 (7th Cir. 2007); LeFoll v. Key Hyundai of Manchester LLC, 829 F.Supp.2d 44 (D. Conn. 2011)). Daye says that whether the payment schedule complies with TILA is an objective test, the measure of which is whether the borrower must make assumptions to determine the precise payment schedule. See Supportive MSJ Brief at 22 (citing Hamm v. Ameriquest Mortgage Co., 506 F.3d at 529).

Daye asserts that all of Speedy Loan’s loans between August 22, 2013, and August 22, 2014, failed to state the first payment date or the payment interval. See Supportive MSJ Brief at 22. According to Daye, all Speedy Loan contracts instead ambiguously stated that “payments are due on your payday.” Supportive MSJ Brief at 22. After April 10, 2014, Daye contends, Speedy Loan exacerbated its TILA violation when it stopped disclosing the number of payments due on loans as well. See Supportive MSJ Brief at 23.

Daye further asserts that many of the loans to TILA Subclass members also stated an inaccurate finance charge and total of payments, meaning that the loans violated TILA in yet another way. See Supportive MSJ Brief at 23. According to Daye, Speedy Loan disclosed a total of payments lower than the sum of the payments disclosed in the payment schedule on 5,535 loans between August 22, 2013, and August 22, 2014. See Supportive MSJ Brief at 24. Daye sees this as a ham-handed attempt at subterfuge, meant to try to make loans appear less expensive than they actually were. See Supportive MSJ Brief at 24. Because the total payment amount decomposes into principal and finance charge—and because the principal on these loans was accurate—it follows, Daye asserts, that Speedy Loan also under-disclosed the loans’ finance charge. See Supportive MSJ Brief at 24.

Daye argues that TILA’s formula for statutory damages has a maximum limit of the lesser of one million dollars or one percent of a creditor’s net worth. See Supportive MSH Brief at 24 (citing 15 U.S.C. § 1640). Daye urges the Court to award her a full one percent Speedy Loan’s net worth, because (i) Speedy Loan’s TILA violations were widespread; (ii) Speedy Loan knowing violated the law; and (iii) Speedy Loan would not suffer any hardship from the award. See Supportive MSJ Brief at 24-25.

Moving to her last set of arguments, Daye' avers- that all loans Speedy Loan made to Deceptive Disclosure Subclass members violated the UPA. See Supportive MSJ Brief at 25. Daye says that the UPA prohibits unfair or deceptive practices, including “making false or misleading statements of fact concerning the price of goods or services.” Supportive MSJ Brief at 25 (quoting N.M.S.A. 1978 § 57-12—2(D)). According to Daye, the UPA has no requirement for detrimental reliance or deception; the plaintiff need only show that an action tends to deceive and has caused economic loss. See Supportive MSJ Brief at 25. Referring to a case out of .the United States District Court for the District of Néw Mexico, Daye says that in “most cases, this showing is fairly simple— the product was not what it was represented to be and, instead, was a product of lesser economic value.” Supportive MSJ Brief at 25 (quoting Mulford v. Altria Group, Inc., 242 F.R.D. 615, 626 (D.N.M. 2007)(Vazquez, J.)(emphasis added in Supportive MSJ Brief).

' Unpacking this line of argument, Daye avers' that Speedy Loan made unfair or deceptive' statements in loans that disclosed ' a total of payments and finance charge lower than the true amount. See Supportive MSJ Brief at 25. Because the statute for limitations is four years for the UPA—as opposed to only one year for TILA—Daye identifies a much larger subclass of -loans that Daye says violate the UPA: 25⅜976 loans in total between August 22, 2010, and August 22, 2014. See Supportive MSJ Brief at 26. Daye contends that, in each of these loans,'the borrower was contractually obligated to pay an amount higher than what Speedy Loan represented to be the amount the borrower would have to pay over the lifetime of the loan. See Supportive MSJ Brief at 26. Because each loan appeared to be less expensive than it actually was, each loan, Daye argues, “was not what it was represented to be and, instead, was a product of lesser economic value.” Supportive MSJ Brief at 26 (quoting Mulford v. Altria Group, Inc., at 626). Daye maintains that the appropriate remedy for UPA violations is the difference between (i) the disclosed total of payments and finance charge; and (ii) the true total of payments and finance charge. See Supportive MSJ Brief at 26.

Wrapping up, Daye asserts that she is entitled to reasonable attorney fees and costs under N.M.S.A. 1978 § 57-12-10(c) and under 15 U.S.C. § 1640(a)(3)— TILA—and 15 U.S.C. § 1693m(a)(3)— EFTA. See Supportive MSJ Brief at 27. She alleges that Speedy Loan reaped windfall profits for years by willfully violating state,and federal law in providing predatory loans to some of the most vulnerable members of society. See Supportive MSJ Brief at 27. Daye therefore requests that the Court enter summary judgment in her favor, See Supportive MSJ Brief at 27'

3. Speedy Loan’s Motion to Extend Deadline.

Speedy Loan filed its Motion to Extend Deadline on May 13, 2016. After quickly summarizing the case’s claims, Speedy notes, that Daye filed her MSJ on the claims on April 5, 2016. See Motion to Extend Deadline at 2. Speedy Loan also notes that three depositions took place after April 27, 2016, and that one additional witnessed scheduled for a deposition on May 6, 2016, needed to be rescheduled on account of illness. See Motion to Extend Deadline at 2. Speedy Loan says that, because the discovery deadline was to be May 2, 2016, it asked Daye’s counsel for an extension of time to file its Response. See Motion to Extend Deadline at 2. According to Speedy Loan, Daye’s counsel agreed to extend the deadline only to May 12, 2016. See Motion to Extend Deadline at 2. Speedy Loan asserts that May 12, 2016, precedes both the date when the rescheduled deposition is scheduled to take place and the date when the deposition transcripts will become available from the court reporter. See Motion to Extend Deadline at 2. In what simultaneously is an implicit call for fair play and an assertion that the deadline extension would not introduce unnecessary delay, Speedy Loan then observes that it recently had given its approval on Daye’s motion to continue the trial for ninety days. See Motion to Extend Deadline at 2.

Speedy Loan argues that the Court should afford it the opportunity to rely on the class representative’s deposition as well as its own customers’ depositions before it has to respond to an MSJ that would essentially be dispositive of the case. See Motion to Extend Deadline at 2, Speedy Loan then emphasizes that the required extension will not cause any prejudice to Daye or create any unnecessary delay in the case. See Motion to Extend Deadline at 2.

4. Daye’s Response to the Motion to Extend Deadline.

Daye filed the Plaintiffs Response Brief in Opposition to Defendant’s Motion to Extend Deadline to File Its Response to Plaintiffs Motion for Summary Judgment and Request for Ruling on May 27, 2016 (Doc. 105)(“Response to the Motion to Extend Deadline”). Daye requests that the Court deny Speedy Loan’s Motion to Extend Deadline, insisting that Speedy Loan’s failure to file and serve a response in opposition to the MSJ within the prescribed time for doing so constitutes consent to grant the MSJ. See Response to the Motion to Extend Deadline at 1. Daye notes that fifty-two days have passed since she filed the MSJ, bringing the total time since the case began to more than six hundred days. See Response to the Motion to Extend Deadline at 1-2. According to Daye, Speedy Loan has presented no reason why it could not have deposed Daye at some point during the preceding two years and adds that Speedy Loan did not even notify Daye of its intent to depose her until after Daye had followed the MSJ. See Response to the Motion to Extend Deadline at 2. Daye sees this combination of facts as proof that Speedy Loan seeks to delay the case for strategic reasons. See Response to the Motion to Extend Deadline at 2. Daye also asserts that Speedy Loan provides no explanation why it could not have obtained Gaco’s and Foster’s affidavits before , the response deadline. See Response to the Motion to Extend Deadline at 2.

Daye maintains that she has been accommodating of Speedy Loan’s previous requests for extensions of time. See Response to the Motion to Extend Deadline at 2. This time is different, Daye asserts; discovery is closed and the case is rapidly moving toward trial, and she cannot agree to a delay of the magnitude that Speedy Loan seeks. See Response to the Motion to Extend Deadline at 2-3. Daye closes by insisting that the Court is entitled to enforce its deadlines to promote this matter’s efficient resolution. See Response to the Motion to Extend Deadline at 3.

5. Speedy Loan’s Reply to the Response to the Motion to Extend Deadline.

Speedy Loan filed Defendant Speedy Loan’s Reply in Support of Motion to Extend Deadline to File Its Response to Plaintiffs Motion for Summary Judgment on June 10, 2016 (Doc. 107)(“Motion to Extend Deadline Reply”). After presenting some case background, Speedy Loan asserts that Daye makes several arguments in her Response to the Motion to Extend Deadline which contradict her recent position in the parties’ Joint Motion to Continue Trial Setting. See Motion to Extend Deadline Reply at 2. According to Speedy Loan, Daye seeks to deny Speedy Loan the opportunity to include evidence from the testimony of the class representative and two Speedy Loan customers even though Daye agreed in the Joint Motion to Continue Trial Setting that the parties need time to “wrap up” discovery matters. Motion to Extend Deadline Reply at 2. Speedy Loan rejects Daye’s assertion that it is trying to delay the case, noting that both parties have agreed to request a continuance of the trial. See Motion to Extend Deadline Reply at 2. Speedy Loan asserts that Daye’s contention that Speedy Loan’s failure to respond to the MSJ before the deadline amounts to consent to grant the MSJ is “disingenuous at best” and that Daye cites no case law to support the contention. Motion to Extend Deadline Reply at 3.

Speedy Loan divulges that its counsel obtained the court reporter’s transcripts on the Friday before it began a two-week federal trial in Santa Fe. See Motion to Extend Deadline Reply at 3. Accordingly, even though a good portion of its MSJ Response is completed, Speedy Loan avers that it “will not have an opportunity to incorporate the needed evidence from the recently-obtained deposition transcripts and to finalize the Response before the end of [the Santa Fe] trial.” Motion to Extend Deadline Reply at 3. Speedy Loan therefore resubmits its request for a deadline extension that, according to Speedy Loan, will cause neither prejudice to Daye nor any unnecessary delay in the case. See Motion to Extend Deadline Reply at 3-4.

6. The MSJ Response.

Speedy Loan filed Defendant Speedy Loan’s Response to Plaintiffs Opposed Motion for Summary Judgment on July 1, 2016. See Defendant Speedy Loan’s Response to Plaintiffs Opposed Motion for Summary Judgment, filed July 1, 2016 (Doc. lll)(“Response”). Speedy Loan offers significant amounts of background at the start of the Response. See Response at 1-3. After summarizing its take on Daye’s Supportive MSJ Brief, Speedy Loan stated that it offers “unsecured installment loans” to its customers. Response at 2. Speedy Loan explains that an installment loan permits someone to borrow money and repay it over time in fixed payments, without penalty for prepayment. See Response at 2 (emphasis in original). In exchange, Speedy Loan says, the borrower is expected to repay the original amount plus interest. See Response at 2. According to Speedy Loan, interest is not pre-computed, and the loans may be repaid at any time to avoid all or part of the interest charges. See Response at 2. Speedy Loan maintains that the absence of collateral and the absence of any upfront fees, in addition to per-loan overhead costs and the lack of pre-payment penalties, makes Speedy Loan’s loan products risky. See Response at 2. Speedy Loan contends that it assumes the risk that the borrower will repay the loan before Speedy Loan recoups its costs, much less make a profit. See Response at 2.

Speedy Loan suggests that Daye’s claims rest solely on three innocent circumstances that Daye has wrongly inflated into allegations of nefarious, intentional conduct by Speedy Loan to cheat its customers. See Response at 2. First, for the convenience of its customers and itself, Speedy Loan wanted its customers to have the opportunity to make periodic payments by electronic funds transfer. See Response at 2. Because most people choose this option, Speedy Loan says, it made electronic funds transfer the default method of payment. See Response at 2. Speedy Loan asserts that customers are allowed to opt-out of electronic payments if they choose not to use them. See Response at 2. Second, the loan form that Speedy Loan used contained an erroneous statement that (i) none of the deposed customers even saw; and (ii) that may make the loans appear more—not less—expensive than they actually were. See Response at 2. This occurs on the form, Speedy Loan says, because the erroneous statement appears to indicate that all loan payments were for the same amount when, in fact, the first and last payment was almost always less (and never more) than the payment amount indicated. See Response at 2. According to Speedy Loan, loan customers barely noticed the erroneous statement—if they noticed it at all—because Speedy Loan disclosed a full page containing the precise accurate payment schedule complete with dates and amounts. See Response at 2-3. Third, Speedy Loan says, all of Speedy Loan’s customers were aware of the fact that they were taking out installment loans to be paid back in a number of payments over approximately four months. See Response at 3. Owing to a then-unknown glitch in its calendaring software, Speedy Loan asserts, a number of its loans came out days short of the 120 days that the Small Loan Act identifies for the definition of an installment loan, because the last payment often occurred before the last month has entirely lapsed. See Response at 3. •

Given the reasons above, Speedy Loan says, the Court must deny Daye’s request for summary judgment on the issue she raised in her MSJ and Supportive MSJ Brief. See Response at 3. Furthermore, Speedy Loan argues, genuine issues of material fact exist as to whether Speedy Loan offered payday loans during the relevant time period. See Response at 11. As Speedy Loan reports the law, New Mexico amended the Small Loan Act in 2007 with regard to one-payment payday loans, which limited loan terms to between fourteen and thirty-five days, precluded renewals or rollovers, and placed fee restrictions. See Response at 11. Speedy Loan purports that the amendments specifically excluded installment loans from the class of loans it defined as “payday” loans. Response at 11 (quoting N.M.S.A. 1978 § 58-15-2(H)(2)(“a payday loan does not include ... installment loans.”)). According to Speedy Loan, N.M.S.A. 1978 § 58-15-2(E) instead defines installment loans differently, as

a loan that is to be repaid in a minimum of four successive substantially equal payment amounts to pay off a loan in its entirety with a period of no less than one hundred and twenty days to maturity. “Installment loan” does not means a loan in which a licensee requires, as a condition of making the loan, the use of post-dated checks or debit authorizations for repayment of that loan.

Response at 3 (quoting N.M.S.A. 1978 § 58-15-2(E)). Speedy Loan accuses Daye of blurring the definitions of “installment loan” and “payday loan” when she says that, “[i]n short, payday loan is any loan (1) in which a preauthorized debit authorization is a condition of the loan, OR (2) in which a preauthorized debit authorization is accepted and either the loan is repaid in fewer than four payments, or the term of the loan is less than 120 days.” Response at 12 (quoting Brief in Support of Plaintiffs Opposed Motion for Summary Judgment at 13)(emphases added in the Response). According to Speedy Loan, Daye’s overgeneralization of the definition of a payday loan neglects scenarios in which loans are clearly installment loans pursuant to the Small Loan Act, but would be deemed payday loans under Daye’s short definition. See Response at 12. Speedy Loan says that one example is an installment loan that is paid off early, he. in fewer than four months or in a period shorter than 120 days, by a consumer’s choice via preauthorized debit transaction. See Response at 12, Speedy Loan states that, under Daye’s definition, this would default to a payday loan even though it commenced as an installment loan solely because a preauthorized debit authorization is accepted and the loan is repaid in fewer than four payments, or the term of the loan is less than 120 days. See Response at 12.

Moreover, Speedy Loan says that, contrary to what Daye asserts, all class members’ loans did not require debit authorization, See Response at 12. According to Speedy Loan, the disclosure statements that Daye signed included language regarding Daye’s right to cancel the authorization for electronic debit: “You may revoke this authorization at any time up to 3 business days prior to the due date.” Response at 12. The payment schedule that Daye signed, Speedy says, contained the following language: “I understand that I may cancel this authorization by providing written notice to Speedy Loan at least (3) business days prior to the payment due date.” Response at 13. Furthermore, Speedy Loan says, Daye testified that she wanted Speedy Loan to take payments out of her bank account. See Response at 13. Speedy Loan argues that other loan recipients have testified that Speedy Loan gave them an option to come into a Speedy Loan office and pay their loan payment in person. See Response at 13.

Turning to tackle another of Daye’s arguments, Speedy Loan asserts that every loan in which Speedy Loan accepted preauthorized debit authorization, and either the loan was to be repaid in fewer than four payments, or the term of the loan was less than 120 days, was not a payday loan, See Response at 13. A borrower receiving a payday loan, Speedy Loan says, intend to repay the loan in one payment, usually on his or her next payday. See Response at 14. In contrast, Speedy Loan notes, Daye and fellow class members intended to have the loans repaid in several payments. See Response at 14.

Speedy Loan goes on to say that, because its loans were not payday loans, Speedy Loan was not required to comply with the Small Loan Act’s provisions related to payday loans. See Response at 14. Consequently, Speedy Loan argues, a damages award or restitution is not appropriate until the Court determines liability. See Response at 15. Even if the Court decides to consider damages at this time, Speedy Loan suggests, the remedies that Daye seeks are wrong. See Response at 15. Speedy Loan says that Daye provides no analysis for her positions that Speedy Loan engaged in unconscionable trade practices, even neglecting to discuss what evidence is needed to support such a position. See Response at 15.

Speedy Loan purports to pick up the slack, telling the Court that the unconscionable trade practices allegation must show (i) the value each borrower received; (ii) the price each borrower paid; (iii) that there was a gross disparity between the value received and the price paid; and (iv) that the loan worked to the borrower’s detriment. See Response at 15-16 (citing N.M.S.A. 1978 § 57—12—2(E)(2)). Speedy Loan contends that Daye has not provided any evidence for any of these elements. See Response at 16. First, Speedy Loan says, the “value” of any item or service depends on individualized preferences and circumstance. See Response at 16. Second, Speedy Loan continues, in the context of an unsecured loan, the price paid must mean the amount the borrower already has paid, e.g., the price a borrower pays is $97 if he or she repays $897 on a $300 loan. See Response at 16.

Third, Speedy Loan asserts that Daye has not presented any evidence as to how the disparity inherent in an interest-bearing loan transaction becomes so great that it reaches the level of “gross” disparity. Response at 16. According to Speedy Loan, New Mexico abolished the usury rate in the state, leaving rate-setting to the market. See Response at 16. Speedy Loan needs to set high interest rates for its installment loans, Speedy Loan argues, given the combination of the small amounts being lent, the overhead costs associated with making the loans, the unsecured nature of the transactions, and high risk of borrower default, and the lack of collectability in the event of a default. See Response at 16. Fourth, Speedy Loan contends, when determining whether a consumer received a benefit from—or conversely suffered a detriment from—a particular transaction is a question of fact. See Response at 16. Because there exist genuine issues of material fact, Speedy Loan maintains, the Court should deny summary judgment on these claims. See Response at 16. Despite Daye’s assertions, Speedy Loan says, there is no evidence that any of Speedy Loan’s loans were void. See Response at 17. If the Court determines that Speedy Loan and its borrowers - made a mutual mistake regarding repayment time-lines, Speedy Loan asks-the Court to permit the parties to move the final payments to 121 days to comply with the parties’ intentions to have, installment loan -contracts. See Response at 17.

Speedy Loan -then' turns to Daye’s restitution argument. See-Response at 17. According to Speedy Loan, Daye assumes in the MSJ and Supportive MSJ Brief-that all the loans at issue are payday loans. See Response at 17. Speedy Loan takes issue with Daye’s calculation, of damages, arguing that it completely disregards restitution’s purpose and Daye fails to set fortfca legal analysis for her request. See Response at 17. According to Speedy Loan, a party is entitled to restitution “only to the extent that he has conferred a benefit on the other party by way of part performance or reliance.” Response at 18 (quoting Restatement (Second) of Contracts § 344(c)). At the same time, Speedy Loan continues, restitution also means • that the party seeking “restitution of a benefit that he conferred on the other party is expected to return what he has received from the other party,” Response at 18 (quoting. Restatement (Second) of Contracts § 344 cmt. (a))(emphasis added in the Response). Furthermore, Speedy Loan asserts) New' Mexico has a longstanding general rule that money awards must be established with reasonable certainty. See Response at 18 (citing People v. Sheran, 306 P.2d 1057, 1061 (Cal.App.1957)). As Speedy Loan reads the rule, reasonable certainty, means •that a plaintiff must produce evidence beyond conjecture or speculation to establish both (i) that damages occurred; - and (