Court filing

Plaintiffs’ Opposition to Motion to Dismiss — Carr v. Kabbage

Filed July 11, 2022 in Carr v. Kabbage; one of 11 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of Georgia, Atlanta Division
Filed	2022-07-11

U.S. District Court for the Northern District of Georgia, Atlanta Division · No. 1:22-cv-01249-VMC · Doc. 18 · 2022-07-11 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JASON CARR, VICKI LeMASTER,
EDWARD FORD SERVICES LLC,
CARLTON MORGAN, 365 SUN LLC,
and CANDICE WORTHY, individually
and on behalf of others similarly
situated,

Plaintiffs,
v.
KABBAGE, INC. d/b/a KSERVICING,
Defendant.

CIVIL ACTION
NO. 1:22-cv-01249-VMC

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS AND REQUEST FOR ORAL ARGUMENT

THE FINLY FIRM, P.C.
MaryBeth V. Gibson, Esq.
Georgia Bar No. 725843
Piedmont Center
3535 Piedmont Rd.
Building 14, Suite 230
Atlanta, GA 30305

WHITE AND WILLIAMS LLP
Shane R. Heskin, Esq. (pro hac
vice)
Justin E. Proper, Esq.
Georgia Bar # 141782
1650 Market Street
Suite 1800
Philadelphia, PA 19103

Attorneys for Plaintiffs and
Putative Class Members
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 1 of 48

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 6
I.
Plaintiffs’ Claims Do Not Seek to Enforce Any Provision of
The Cares Act ............................................................................................. 6

A. The CARES Act, PPP & FinTech Companies ........................................... 7

B. Kabbage is Currently Under Investigation for PPP Fraud ......................... 8

C. Kabbage’s Lawsuit Against Customers Bank for Allegedly
Failing to Pay Fees for Servicing PPP Loans Belies its Argument
That this Lawsuit is Proscribed .................................................................. 9

D. Plaintiffs Do Not Allege Any Violation of the Small
Business Act or the CARES Act .............................................................. 10

E. The Court Should Reject Kabbage’s Argument that the
CARES Act Does Not Provide for an Implied Right of Action .............. 12

F. The Case Law Kabbage relies Upon is Inapposite ................................... 13

G. Plaintiffs’ State Law Claims Are Not Precluded by the CARES Act ...... 15

II.
Kabbage’s Terms of Service (“ToS”) Do Not Preclude Plaintiffs’
Non-Georgia Statutory Claims ................................................................ 16

A. Kabbage Has Not Made the Required Showing that
Plaintiffs Agreed or Were Otherwise on Notice of the
Terms of Service ...................................................................................... 17

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 2 of 48

B. Regardless of Whether the terms of Service Apply,
Their Limited Scope Does Not Impact Plaintiffs’ State
Consumer Law Claims ........................................................................ 18

III.
Kabbage Foments A Number Of Bases To Dismiss A
Claim Which Plaintiffs Have Not Alleged ............................................... 19

IV.
Plaintiffs Have Plausibly Alleged Violation of Numerous States’
Consumer Fraud Claims ........................................................................... 21

A. Kabbage’s Conduct is The Epitome of Unfair .................................... 21

B. Plaintiffs Have Plausibly Alleged Fraudulent Conduct ...................... 26

C. Plaintiffs Have Plausibly Alleged Unlawful Conduct ........................ 26

D. Plaintiffs Have Plausibly Alleged Reliance and Damages ................. 28

E. Kabbage’s Conduct Affects Trade or Commerce ............................... 31

V.
Plaintiffs Carr, Edward Ford Services LLC and Morgan
Have Not Failed to Avail Themselves of Any Purported
Administrative Remedy ............................................................................ 34

CONCLUSION ........................................................................................................ 36

CERTIFICATE OF COMPLIANCE ....................................................................... 37

CERTIFICATE OF SERVICE ................................................................................ 38

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 3 of 48

iii

TABLE OF AUTHORITIES
Cases

Page(s)

Action Auto Glass v. Auto Glass Spec.,
134 F.Supp.2d 897 (W.D. Mich. 2001) ........................................................ 33

Acosta v. Gustino
No. 6:11-cv-1266-Orl-31GJK, 2012 U.S. Dist. LEXIS 130656 (M.D. Fla.
Sep. 12, 2012) ......................................................................................... 31, 32

Allan v. M&S Mortg. Co.,
138 Mich. App. 28 (1984) ............................................................................ 33

Amin v. Mercedes-Benz USA, LLC,
349 F. Supp.3d 1338 (N.D. Ga. 2018) .......................................................... 20

Babcock v. Neutron Hold., Inc.,
454 F. Supp.3d 1222 (S.D. Fla. 2020) .......................................................... 18

Beco Const. Co., Inc. v. Bannock Paving Co., Inc.,
797 P.2d 863 (D. Idaho 1990) ...................................................................... 11

Bolinger v. First Multiple Listing Serv., Inc.,
838 F. Supp.2d 1340 (N.D. Ga. 2012) .......................................................... 21

Bookworld Trade, Inc. v. Daughters of St. Paul, Inc.,
532 F. Supp. 2d 1350 (M.D. Fla. 2007) ....................................................... 22

Bracciale v. Valdez,
8:17-CV-2040-T-36AEP, 2017 WL 4117806
(M.D. Fla. Sept. 18, 2017) ............................................................................ 11

Castillo v. Nationstar Mortg. LLC,
No. 15-CV-01743-BLF, 2016 WL 6873526 (N.D. Cal. Nov. 22, 2016) ..... 28
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 4 of 48

City First Mortg. Corp. v. Barton,
988 So. 2d 82 (Fla. 4th DCA 2008) .............................................................. 22

Cold Stone Creamery, Inc. v. Lenora Foods I, LLC,
332 Fed.Appx. 565 (11th Cir. 2009) ............................................................ 30

College. Loan Corp. v. SLM Corp.,
396 F.3d 588 (4th Cir. 2005) ........................................................................ 11

Conn. State Dental Ass’n v. Anthem Health Plans, Inc.,
591 F.3d 1337 (11th Cir. 2009) .................................................................... 21

Dalton v. Camp,
353 N.C. 647 (2001) ..................................................................................... 32

Daniel T.A. Cotts PLLC v. Am. Bank, N.A.,
No. 2:20-CV-185, 2021 WL 2196636 (S.D. Tex. Feb. 9, 2021) ................. 14

Davis v. Powertel, Inc.,
776 So.2d 971 (Fla. 1st DCA 2000) ............................................................. 30

Diagnostic Affiliates of Northeast Hou, LLC v. United Healthcare Services, Inc.,

No. 2:21-CV-00131, 2022 WL 214101 (S.D. Tex. Jan. 18, 2022) .............. 13

Dickerson v. Nahra,
809-CV-963-T-17TGW, 2010 WL 746707 (M.D. Fla. Mar. 2, 2010) .. 11, 12

Duncan v. Rushmore Loan Mgmt. Servs., LLC,
No. 6:20-CV-1524-CEM-GJK, 2021 WL 8774248 ................................ 10, 11

Food Lion, Inc. v. Cap. Cities/ABC Inc.,
951 F. Supp. 1224 (M.D.N.C. 1996) ............................................................ 22

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 5 of 48

Fridman v. 1-800 Contacts, Inc.,
554 F. Supp.3d 1252 (S.D. Fla. 2021) .......................................................... 17

Gerstle v. Nat’l Credit Adjusters, LLC,
76 F.Supp.3d 503 (S.D.N.Y. 2015) .............................................................. 28

Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond,
80 F.3d 895 (4th Cir. 1996) .......................................................................... 22

Hollifield v. Monte Vista Bib. Gardens, Inc.,
251 Ga. App. 124 (2001) .............................................................................. 34

Hunt v. Nationstar Mortg.,
No. 1:21-10398 (11th Cir. May 27, 2022) .................................................... 35

Ingels v. Westwood One Broad. Servs., Inc.,
129 Cal.App.4th 1050 (2005) ....................................................................... 27

Integrity Mgm’t Intern., Inc. v. Tombs & Sons, Inc.,
836 F.2d 485 (10th Cir. 1987) ...................................................................... 11

IOU Cent., Inc. v. Shore App. Conn’n Inc.,
No. 1:20-CV-2367-MLB, 2021 WL 1061817 (N.D. Ga. Mar. 18, 2021) .... 21

IT Strat. Grp., Inc. v. Allday Consult. Grp., L.L.C.,
975 F. Supp.2d 1267 (S.D. Fla. 2013) .......................................................... 18

Izenberg v. ETS Servs., LLC,
589 F. Supp.2d 1193 (C.D. Cal. 2008) ......................................................... 28

Kabbage, Inc. d/b/a KServicing v. Customers Bank,
No. 1:22-cv-02101-JPB (N.D. Ga.) ................................................................ 9

Kertesz v. Net Transactions, Ltd.,
635 F. Supp. 2d 1339 (S.D. Fla. 2009) ......................................................... 22
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 6 of 48

Laster v. Georgia,
No. 1:20-CV-81, 2020 U.S. Dist. LEXIS 253347
(M.D. Ga. July 1, 2020) ................................................................................ 14

Leigh King Norton & Underwood, LLC v. Regions Fin. Corp.,
497 F. Supp. 3d 1098 (N.D. Ala. 2020) ....................................................... 14

Lovett v. Ray,
327 F.3d 1181 (11th Cir. 2003) .................................................................... 21

Lozano v. AT&T Wireless Servs., Inc.,
504 F.3d 718 (9th Cir. 2007) ........................................................................ 22

Lucius, v. Fort Taco, LLC,
No. 21-22397-CIV, 2022 WL 335491 (S.D. Fla. Jan. 5, 2022) ................... 12

McDonald v. Scarboro,
91 N.C.App. 13, 370 S.E.2d 680 ................................................................... 32

Mesa Air Grp., Inc. v. Delta Air Lines, Inc.,
No. 1:08-CV-1334-CC, 2010 WL 11508953 (N.D. Ga. May 17, 2010) ..... 19

Newton v. West,
262 Mich. App. 434 (2004) .......................................................................... 33

Parks v. Thompson Builders, Inc.,
296 Ga.App. 794, 675 S.E.2d 583 (2009) .............................................. 33, 34

Perea v. Walgreen Co.,
939 F.Supp.2d 1026 (C.D. Cal. 2013) .......................................................... 27

Raber v. Osprey Alaska, Inc.,
187 F.R.D. 675 (M.D. Fla. 1999) ................................................................. 26

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 7 of 48

vii

Randolph v. J.M. Smucker Co.,
303 F.R.D. 679 (S.D. Fla. 2014) ................................................................... 28

Ryan-Beedy v. Bank of New York Mellon,
293 F. Supp. 3d 1101 (E.D. Cal. 2018) ........................................................ 22

Sanchez v. L. Off. of Armo,
No. 120CV00163NONESKO, 2021 WL 1214559
(E.D. Cal. Mar. 31, 2021) ............................................................................. 27

Steven L. Steward & Assocs., P.A. v. Truist Bank,
No. 620CV1083ORL40GJK, 2020 WL 5939150
(M.D. Fla. Oct. 6, 2020) ............................................................................... 14

Tectonics, Inc. of Florida v. Castle Const. Co., Inc.,
753 F.2d 957 (11th Cir. 1985) .......................................................... 11, 12, 13

Thornton v. Uber Techs., Inc.,
359 Ga. App. 790 (2021) .............................................................................. 17

United States v. Crowther,
No. 220CR00114JLBMRM, 2021 WL 50481 .............................................. 10

United States v. Sutcliffe,
505 F.3d 944 (9th Cir. 2007) ........................................................................ 28

Westchester Fire Ins. Co. v. Johnson,
221 F. Supp. 2d 637 (M.D.N.C. 2002) ......................................................... 30

Statutes

California’s Rosenthal Act, Cal. Civ. Code § 1788 ........................................... 27, 28

California’s Unfair Competition Law .................................................... 21, 22, 27, 34

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 8 of 48

viii

Coronavirus Aid, Relief, and Economic Security Act (“Cares Act”) ............ passim

Fair Debt Collections Practice Act, 15 U.S.C. § 1692 ...................................... 27, 28

Florida Deceptive and Unfair Trade Practices Act .............................. 22, 29, 31, 32

Georgia Code Annotated, O.C.G.A. § 13-6-11 ....................................................... 35

Georgia Fair Business Practices Act, O.C.G.A. §10-1-393.......................... .5, 19, 20

Georgia Uniform Deceptive Trade Practices Act, O.G.C.A. §10-1-370 ....... 5, 20, 21

Health Insurance Portability and Accountability Act of 1996........................... 13, 14

Michigan Consumer Protection Act....................................................... 15, 16, 32, 33

North Carolina Unfair and Deceptive Trade Practices Act ..............................passim

Small Business Act ..........................................................................................passim

Rules and Regulations

13 C.F.R. § 120 (2021) ........................................................................................... 34

Pub. L116-136, § 15002(b), 134 Stat 281 .................................................................. 7

Other Authorities

“Kabbage, Inc. Terms of Service,” available at
https://www.kservicing.com/legal/tos/....................................................................19

Laquisha Milner, K Servicing: CEO: How to Guide an Organization to Its End,
METRO ATLANTA CEO (April 29, 2022), available at
http://metroatlantaceo.com/news/2022/04/kservicing-ceo-leading-backward-how-
guide-organization-its-end/ (last visited July 11, 2022) ........................................ 2, 3
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 9 of 48

Letter to Rob Frohwein, (former) Chief Executive Officer of Kabbage, from The
Honorable James Clyburn, Chair, Senate Select Subcommittee on the Coronavirus
Crisis,
May
27,
2021,
at
*1,
available
at
https://coronavirus.house.gov/sites/democrats.coronavirus.house.gov/files/2021-
05-27.Clyburn%20to%20Kabbage%20re%20FinTech%20PPP%20Fraud.pdf (last
visited July 8, 2022) .............................................................................................. 2, 8

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 10 of 48

Plaintiffs Jason Carr, Vicki LeMaster, Edward Ford Services LLC, Carlton
Morgan¸ 365 Sun LLC and Candice Worthy, individually and on behalf of all others
similarly situated (collectively, “Plaintiffs”) and in opposition to Defendant Kabbage,
Inc. d/b/a KServicing’s (“Kabbage” or “Defendant”) Motion to Dismiss and Request
for Oral Argument and Memorandum of Law in Support (Doc. 12, 12-1, hereafter the
“Motion” or “MTD”) state as follows:
INTRODUCTION
Evidently, after reaping hundreds of millions of dollars for merely approving
Paycheck Protection Program (“PPP”) loan applications with little to no due diligence,
Kabbage now wants to deepen its pockets at the expense of the same small businesses
that the PPP was designed to protect. Kabbage’s ill-motive could not be more obvious.
Rather than opting into the SBA’s Direct Borrower Forgiveness Portal to ensure timely
forgiveness of the thousands of loans it processed, Kabbage instead opted to self-service
the forgiveness program, keeping borrowers under the burden and weight of these loans
for as long as possible. The result of this choice: collecting additional tens of millions
of dollars in loan servicing fees while the small businesses and their individual owners
suffer under the strain and threat of losing their business in an inflationary environment
that is wreaking havoc on almost every small business in the nation.
The end-game for Kabbage is clear, as its CEO has been quite vocal about it:
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 11 of 48

•
after lobbying the Treasury Department for inclusion in the PPP to save its
floundering business,
•
after employing (and boasting about) a PPP loan screening processes that
failed to detect numerous and obvious instances of fraud, and that has been
described as “woefully inadequate,”
•
after receiving approximately $330 million for processing (not funding)
PPP loan applications while performing little to no due diligence, which
has resulted in federal investigations into Kabbage by the Senate Select
Subcommittee on the Coronavirus Crisis and the United States Department
of Justice,1
•
after pocketing that money, and selling itself to American Express for
nearly a billion dollars and rebranding the remaining skeletal loan
servicing division as KServicing,
•
after attempting to collect additional untoward tens of millions of dollars
for servicing fees by keeping Plaintiffs’ and the putative class members’
PPP loans on the books as loan as possible by incompetently servicing
those loans including forgiveness applications,
•
after such a notorious and lucrative run, Kabbage’s new CEO announces
that the company is now ready to wind up operations.2

1
See Letter to Rob Frohwein, (former) Chief Executive Officer of Kabbage, from
The Honorable James Clyburn, Chair, Senate Select Subcommittee on the Coronavirus
Crisis,
May
27,
2021,
at
*1,
available
at
https://coronavirus.house.gov/sites/democrats.coronavirus.house.gov/files/2021-05-
27.Clyburn%20to%20Kabbage%20re%20FinTech%20PPP%20Fraud.pdf (last visited
July 8, 2022) (stating that “[t]his failure to detect fraud occurred while Kabbage and
other FinTechs made hundreds of millions of dollars in fees by issuing publicly funded
PPP loans”); see also MTD at 23 n. 8 (citing cases for proposition that court can take
judicial notice of records on official government websites).

2
See Laquisha Milner, K Servicing: CEO: How to Guide an Organization to Its
End,
METRO
ATLANTA
CEO
(April
29,
2022),
available
at
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 12 of 48

Against that backdrop, it is hard to fathom how Kabbage can brazenly ask this
Court to dismiss Plaintiffs’ claims because its conduct was not unfair, deceptive or
unlawful as a matter of law. (MTD at 20 stating that “Plaintiffs have simply failed to
plead any facts establishing that any harm outweighs the benefits, as required”.)
Starting in October of 2020, individuals and entities that received PPP loans
could begin to apply for forgiveness. As detailed in the Complaint, Kabbage is refusing
to timely process loan forgiveness applications because the longer it keeps those loans
“on the books” the more servicing fees, which by its own estimation can amount to tens
of millions of dollars, it can manufacture. In order to accomplish this rather pernicious
objective, Kabbage is (i) failing to timely process forgiveness applications, (ii)
repeatedly requesting non-existent and/or unnecessary documentation; (iii) representing
that its so-called state-of-the-art technology will allow borrowers’ loans to be processed
and serviced quickly but, in actuality, not having a working platform for months at a
time; (iv) sending borrowers loan forgiveness applications with the amount to be
forgiven pre-populated to “$0.00,” among many, many other deficiencies.
There are tens of thousands of borrowers who have been severely impacted by
Kabbage’s seemingly inexhaustible greed and abject incompetence. Those individuals

http://metroatlantaceo.com/news/2022/04/kservicing-ceo-leading-backward-how-
guide-organization-its-end/ (last visited July 11, 2022).

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 13 of 48

have spent countless hours tracking down irrelevant paperwork, attempting to speak
with Kabbage customer service, waiting months for the Kabbage portals to become
operational, re-submitting loan forgiveness applications and documents numerous
times—all because the longer Kabbage takes to process these forgiveness applications,
the more money it can extract in servicing fees.3
Now, faced with this class action lawsuit, Kabbage is attempting to manufacture
an “out” by representing to this Court that Plaintiffs’ claims are all improper because
they somehow seek to enforce the Coronavirus Aid, Relief, and Economic Security Act
(the “CARES Act”), which does not provide for a private right of action. Yet, Kabbage
does not—because it cannot—point to any provision of the CARES Act that Plaintiffs
purportedly seek to enforce by this lawsuit. Contrary to Kabbage’s oft-repeated refrain,
Plaintiffs are not claiming that Kabbage should have participated in the SBA’s Direct
Borrower Forgiveness Portal; rather, Plaintiffs contend that once Kabbage began
servicing these loans, it should have done so competently and in good-faith so that
borrowers would have received a decision on their forgiveness applications in a timely

3
See, e.g., Doc. 1, Complaint, ¶163 (citing Miami Herald article entitled
“Unforgiven: Two years later, small businesses still waiting for promised PPP loan
forgiveness,” detailing the saga of Plaintiff Vicki LeMaster stating that “she’s spent
hundreds of hours on the phone and replied to numerous emails asking her to resubmit
documents and paperwork that she had already provided”).

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 14 of 48

manner and so that they would not be stuck in a seemingly endless loop between the
SBA, their funding banks and Kabbage, their loan servicer. That is the essence of
Plaintiffs’ claims, and determination of those issues do not depend on private
enforcement of the CARES Act.
Kabbage is attempting to have it both ways. On one hand, it wants this Court to
absolve it of any potential liability merely because the loans were issued further to the
“CARES Act,” but on the other hand, Kabbage itself has commenced a separate lawsuit
contending that one of its partner banks has refused to pay it “tens of millions” of dollars
in fees for servicing PPP loans authorized by the CARES Act. Evidently, Kabbage’s
attempt to force one of its partner banks to pay it millions of dollars for servicing these
very same PPP loans is not preempted by the CARES Act but Plaintiffs’ attempt to have
this Court consider whether they were damaged as a result of Kabbage’s incompetence
in servicing the very same loans is for some reason beyond judicial scrutiny. It is not.
Kabbage’s other arguments in support of dismissal are as ill-conceived and
haphazard as its loan servicing. For starters, Kabbage inexplicably argues that
Plaintiffs’ claim under the Georgia Fair Business Practices Act, O.C.G.A. §10-1-393(a),
should be dismissed for a litany of reasons, but the fundamental problem with
Kabbage’s argument is that Plaintiffs have not asserted a claim under the GFBPA at
all. Rather, as is clear and unmistakable from the Complaint, Plaintiffs state a claim
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 15 of 48

under the Georgia Uniform Deceptive Trade Practices Act, O.G.C.A. §10-1-370, and
that claim is adequately pled with sufficient factual detail. Moreover, Kabbage’s
attempt to use its Terms of Service (“ToS”) to ward off Plaintiffs’ statutory consumer
fraud claims fails because (i) it has not made any showing that Plaintiffs either provided
express consent or were otherwise on constructive notice of the terms and (ii) the choice
of law provision does not mandate application of Georgia law to those statutory
consumer fraud claims.
In sum, Kabbage has devised an opportunistic scheme to profit off the COVID-
19 pandemic at every turn, regardless of the impact of its actions (or inactions) on
American taxpayers and the hundreds of thousands of individuals and small businesses
continuing to struggle as a result of the pandemic. Plaintiffs have set forth well-pled
allegations giving rise to plausible claims and Kabbage’s Motion to Dismiss should be
denied in its entirety.
ARGUMENT
I.
PLAINTIFFS’ CLAIMS DO NOT SEEK TO ENFORCE ANY
PROVISION OF THE CARES ACT.

Kabbage first argues that “all of the claims [in Plaintiffs’ Complaint] arise out of
and seek enforcement of the [CARES Act] or the SBA regulations that seek to enforce
the CARES Act, which do not provide a private right of action.” (MTD at 1.) Kabbage
further remarks that Plaintiffs’ unjust enrichment claim and state law statutory
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 16 of 48

consumer fraud claims “seek[] damages based on [Kabbage’s] performance
administering the CARES Act.” (Id. at 6.) Kabbage’s mistaken attempt to reframe
Plaintiffs’ claims as attempts to enforce the CARES Act is unavailing because it has not
pointed to a single provision of the Act that Plaintiffs claim Kabbage violated.
A.
The CARES Act, PPP & FinTech Companies.
The CARES Act—the largest economic relief bill in U.S. history, with a total of
$2.2 trillion allocated to support individuals, business and organizations—was signed
into law on March 27, 2020. See Pub. L116-136, § 15002(b), 134 Stat 281. The CARES
Act established the PPP, which provided cash-flow assistance through 100% federally-
guaranteed loans to help small businesses survive the COVID-19 crisis by providing
forgivable loans to cover payroll, rent and utility payments.
On April 8, 2020 and after facing unprecedented numbers of PPP applications,
the SBA began allowing non-bank lenders, including financial technology companies
(“FinTechs”) like Kabbage, to process and/or to provide loans to eligible recipients.
(See Doc. 1, hereafter “Compl.”, ¶ 4.) In many instances, FinTechs partnered with
regulated banks to process loans; typically, the FinTechs on-boarded, verified and
approved applications and then submitted the loans to SBA through the bank partners.

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 17 of 48

B.
Kabbage is Currently Under Investigation for PPP Fraud.
Although in its MTD Kabbage goes to great lengths to make it appear that it was
a savior to small business,4 the truth of the matter is that Kabbage is under Congressional
and Department of Justice scrutiny because it failed to exercise an appropriate amount
of due diligence but rather rushed through as many PPP loan applications as possible in
order to generate massive amounts of origination fees; “[t]his failure to detect fraud
occurred while Kabbage and other FinTechs made hundreds of millions of dollars in
fees by issuing publicly funded PPP loans.”5
FinTechs, including Kabbage, handled 75 percent of the approved PPP loans that
have been connected to fraud, despite facilitating just 15 percent of PPP loans overall.
The fraud rates associated with these loans strongly suggest that FinTech companies’
loan screening processes were woefully inadequate. A Bloomberg report identifies
multiple instances of fraud that could have been prevented had FinTechs simply
conducted web searches for the company name of inactive, nonexistent, or otherwise
clearly ineligible applicants.6 Kabbage itself processed over 300,000 PPP loans worth

4
See, e.g., MTD at 20 (stating “[a]bsent the work of [Kabbage] and other similarly-
situated loan servicers, businesses without prior existing relationships were likely
facing financial ruin and the shuttering of their businesses”).

5
See May 27, 2021 letter from Hon. James Clyburn Letter to Kabbage, at *1.

6
See id.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 18 of 48

$7 billion between April 3, 2020 and August 8, 2020, making it the second-largest PPP
lender by application volume. (Compl., ¶¶ 5-8.) Independent experts estimate that
Kabbage has “earned” at least $330 million in fees for its “work.” (Id.) Kabbage
accounts for an astonishing 20 percent of all suspicious PPP loans, casting significant
doubt on the company’s onboarding and fraud detection process.
C.
Kabbage’s Lawsuit Against Customers Bank for Allegedly Failing to
Pay Fees for Servicing PPP Loans Belies its Argument that this
Lawsuit is Proscribed.

Oddly, Kabbage has sued the only one of its partner banks that is not currently
under investigation. On May 25, 2022, Kabbage filed a lawsuit—which was assigned
to Judge J. P. Boulee—against Customers Bank. By that lawsuit, Kabbage alleges that
Customers Bank has refused to pay Kabbage tens of millions of dollars for servicing
PPP loans that were authorized and issued further to the CARES Act.7
That lawsuit demonstrates not only that Kabbage is seeking millions of dollars in
servicing fees—attesting to the magnitude of its greed—but also the sheer falsity of its
argument in support of dismissal of this lawsuit, namely, that Plaintiffs’ claims are
somehow preempted or untenable because there is no private right of action under the

7
See Kabbage, Inc. d/b/a KServicing v. Customers Bank, Case No. 1:22-cv-02101-
JPB (N.D. Ga.), ¶¶ 9-10 & 16.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 19 of 48

CARES Act. This action is no more an improper CARES Act suit than the action
Kabbage is pursuing to obtain servicing fees.8
D.
Plaintiffs Do Not Allege Any Violation of the Small Business Act or the
CARES Act.

As is apparent from the Complaint, Plaintiffs are not suing to enforce any
provision of the Small Business Act or the CARES Act. Kabbage realizes this (as it has
not pointed to a single provision that Plaintiffs contend it violated), but nonetheless
spills a significant amount of ink asserting this tenuous argument. Plaintiffs are suing
because the manner in which Kabbage serviced their loans was contrary to consumer
law and public policy. Plaintiffs claim Kabbage violated various state consumer
protection statutes, in addition to alleging common law unjust enrichment and seeking
declaratory and injunctive relief. (See generally Compl., ¶¶ 8, 65, 80-81, 110, 113-
141.) None of Plaintiffs’ counts depend on an underlying violation of the CARES Act.
See, e.g., United States v. Crowther, No. 220CR00114JLBMRM, 2021 WL 50481, at
*3 (M.D. Fla. Jan. 6, 2021) (denying motion to dismiss because “as the Government
points out, Mr. Crowther is not accused of violating the CARES Act”); Duncan v.
Rushmore Loan Mgmt. Servs., LLC, No. 6:20-CV-1524-CEM-GJK, 2021 WL 8774248,

8
Moreover, the Kabbage v. Customers Bank Complaint demonstrates just how
lucrative Kabbage’s exploitative practices are in that it alleges “Customers has withheld
tens of millions in [various] fees,” even “after accounting for setoffs by [Kabbage] of
amounts [Kabbage] owes to Customers.” See id., ¶ 16.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 20 of 48

at *5 (M.D. Fla. Sept. 30, 2021) (rejecting defendant’s argument “that the CARES Act
does not create a private right of action” and therefore claims premised on alleged
CARES Act violations are an improper attempt at “bootstrapping”).
Plaintiffs are not seeking to enforce any provision of either statute but rather
assert exclusively state law-based claims regarding loans authorized by these federal
statutes, which are not preempted. Notably, “[t]he Eleventh Circuit has held that the
SBA does not completely preempt all state causes of action that implicate the standards
created by the SBA.” Bracciale v. Valdez, No. 8:17-CV-2040-T-36AEP, 2017 WL
4117806, at *7 (M.D. Fla. Sept. 18, 2017) (citing Tectonics, Inc. of Florida v. Castle
Const. Co., Inc., 753 F.2d 957, 962 (11th Cir. 1985) (stating that “Congress did not
intend to occupy the entire field of small business concerns to the extent that all state
remedies would be foreclosed”)); see also Integrity Mgm’t Intern., Inc. v. Tombs &
Sons, Inc., 836 F.2d 485, 494 (10th Cir. 1987) (holding Small Business Act did not
preempt state law claims); Beco Const. Co., Inc. v. Bannock Paving Co., Inc., 797 P.2d
863 (D. Idaho 1990) (holding Small Business Act did not preempt state common-law
claims).9

9
Moreover, where a plaintiff brings a state law claim based in part on failure to
adhere to federal regulations, federal courts may look to those regulations for guidance.
See, e.g., College. Loan Corp. v. SLM Corp., 396 F.3d 588, 599 n. 9 (4th Cir. 2005)
(“[W]e have specifically recognized that, absent preemption, an injured plaintiff may
sue under state law seeking redress for a violation of a federal regulation.”); Dickerson
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 21 of 48

E.
The Court Should Reject Kabbage’s Argument that the CARES Act
Does Not Provide for an Implied Right of Action.

Although not strictly necessary because Plaintiffs are not suing to enforce any
provision of the CARES Act, Kabbage’s claim that this Court should—at the pleading
stage—throw out all of Plaintiffs’ claims because the CARES Act does not authorize
an implied private right of action should be rejected. (See MTD at 9, stating that
“[n]either the CARES Act nor its predecessor, the SBA Act, create an express or
implied private right of action”).
The very first case cited by Kabbage in putative support of that contention,
Tectonics, Inc. of Florida v. Castle Construction, Co., actually supports Plaintiffs’
position: “[t]hus, we hold that Congress, by enacting the Small Business Act, did not
preempt the field so as to preclude a state cause of action based upon the Act as a
standard in determining whether the actions of fraud, unjust enrichment or interference
with a business relationship are available ...” (See MTD at 9-10) (citing 753 F.2d 957,
960 (11th Cir. 1985)). As the Eleventh Circuit held in Tectonics, Plaintiffs here should

v. Nahra, 809-CV-963-T-17TGW, 2010 WL 746707, at *6 (M.D. Fla. Mar. 2, 2010)
(“While the violation of federal regulations may be evidence of the breach of fiduciary
duty under substantive principles of state law, the breach of fiduciary duty claim
remains a state law claim.”). And federal courts in this Circuit have examined the SBA
PPP regulations in evaluating causes of action not based on the Small Business Act or
CARES Act. See, e.g., Lucius, v. Fort Taco, LLC, No. 21-22397-CIV, 2022 WL
335491, at *3 (S.D. Fla. Jan. 5, 2022) (analyzing SBA regulations related to the PPP,
including the Interim Final Rules).
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 22 of 48

be able to assert their state law claims because Kabbage makes no showing that these
claims are preempted or precluded by the Small Business Act or the CARES Act.
Moreover, courts have denied motions to dismiss similar actions finding that the
CARES Act does provide for an implied private right of action. For instance, on
January 19, 2022, Judge Gonzales Ramos, in Diagnostic Affiliates of Northeast Hou,
LLC v. United Healthcare Services, Inc., issued an extremely thorough decision
assessing whether, in the context of a healthcare provider asserting that various health
insurers had an obligation to pay for COVID-19 testing, the CARES Act implies a
private right of action; “the Court concludes that there is an implied private right of
action to enforce the provisions of the FFCRA and CARES Act reimbursement
requirement.” See No. 2:21-CV-00131, 2022 WL 214101, at **8-9 & *18 (S.D. Tex.
Jan. 18, 2022) (denying motion to dismiss based on argument that there is no implied
private right of action to enforce the CARES Act).
F.
The Case Law Kabbage Relies Upon is Inapposite.

Not one of the cases Kabbage cites for the proposition that “Plaintiffs cannot
maintain a private cause of action under the CARES Act” so much as mentions the
CARES Act, let alone holds that the Act bars Plaintiffs’ claims here. (See generally
MTD at 8-11.) In fact, the only case Kabbage cites post-dating the CARES Act is a
completely irrelevant case discussing claims brought in relation to the Health Insurance
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 23 of 48

Portability and Accountability Act of 1996. (MTD at 9) (citing Laster v. Georgia, No.
1:20-CV-81, 2020 U.S. Dist. LEXIS 253347 (M.D. Ga. July 1, 2020).)
Kabbage completely ignores existing federal case law where courts have held
that the CARES Act does not provide for the relief sought. Perhaps this is because this
case law is completely distinguishable from the instant case. The majority of this case
law involves businesses, such as accounting firms, suing PPP lenders for failing to pay
“agent fees” that they were allegedly owed under the CARES Act. See, e.g., Steven L.
Steward & Assocs., P.A. v. Truist Bank, No. 620CV1083ORL40GJK, 2020 WL
5939150, at *3 (M.D. Fla. Oct. 6, 2020) (dismissing complaint because “Plaintiff’s
claim for declaratory relief requires [finding] an underlying cause of action for agent
fees [within the CARES Act], and no such action exists”); Leigh King Norton &
Underwood, LLC v. Regions Fin. Corp., 497 F. Supp. 3d 1098, 1098 (N.D. Ala. 2020)
(dismissing complaint alleging claim for violation of SBA Act); Daniel T.A. Cotts
PLLC v. Am. Bank, N.A., No. 2:20-CV-185, 2021 WL 2196636, at *5 (S.D. Tex. Feb.
9, 2021) (same). Although not cited by Kabbage, the case law is inapposite because it
is wholly dependent on courts finding that defendants violated a specific provision of
the CARES Act.
In this case, if the Complaint were to be stripped of all references to the CARES
Act and PPP, Plaintiffs’ claims—that they were misled into believing that Kabbage
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 24 of 48

could adequately service their loans only to suffer significant damages due to Kabbage’s
ineptitude—would substantively remain the same, thereby demonstrating that
Plaintiffs’ claims are not dependent on a finding of violation of any federal law or
regulation. The crux of this case is not any specific section of the CARES Act or SBA
regulations – the crux of this case is the unfair, deceptive, fraudulent and tortious
conduct of Kabbage in servicing Plaintiffs’ loans.
G.
Plaintiffs’ State Law Claims Are Not Precluded by the CARES Act.

Kabbage contends that Plaintiffs’ Michigan Consumer Protection Act (“MPCA”)
claim is precluded because that statute does not apply to “[a] transaction or conduct
specifically authorized under laws administered by a regulatory board or officer acting
under statutory authority of this state or the United States.” (MTD at 27.) In putative
support, Kabbage cites to inapposite Michigan case law regarding the state’s regulation
of occupational conditions, casinos and slot machines. (See id.) The only other law
Kabbage refers to is the CARES Act. Kabbage states that “the issuance of PPP loans
by KServicing is specifically authorized by the CARES Act.” (Id. at 27.) Not only did
Kabbage not issue any loans, but it does not identify any section of the CARES Act
authorizing any of its conduct servicing the loans.
Yet, Kabbage does not demonstrate that just because the CARES Act authorized
the funding of PPP loans it ultimately serviced that Plaintiffs are somehow precluded
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 25 of 48

from alleging a Michigan state consumer law claim regarding incompetent and
defective servicing that caused damages separate and distinct from the CARES Act. It
defies common sense and logic to argue that the CARES Act somehow authorizes or
sanctions the tortious conduct of Kabbage detailed by Plaintiffs in the Complaint, and
as reported in numerous media reports. Neither Plaintiffs’ MCPA claim, nor any other
claim is precluded by the CARES Act.
II.
KABBAGE’S TERMS OF SERVICE (“ToS”) DO NOT PRECLUDE
PLAINTIFFS’ NON-GEORGIA STATUTORY CLAIMS.
Kabbage states that “the [ToS] of Service Plaintiffs agreed to mandate[] that all
disputes relating to [Kabbage’s] services with respect to PPP loans are governed by
Georgia law” and “therefore Plaintiff’s consumer protection claims under California,
North Carolina, Michigan and Florida statutes are inapplicable.” (MTD at 2.)
Kabbage seemingly thinks it can skip over basic principles of contract formation
because Plaintiffs cite two sentences of the ToS in the Complaint: “[Kabbage]’s Terms
of Service state that ‘[t]hese [ToS] shall be governed by the internal substantive laws of
the State of Georgia, without respect to its conflict of laws principles. Any claim or
dispute between you and Kabbage, Inc. that arises in whole or in part from the Website
or the Services shall be decided exclusively by a court of competent jurisdiction located
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 26 of 48

in Atlanta, Georgia.’” (Compl., ¶ 234.)10 Kabbage is mistaken as to the applicability of
the ToS in general, and certainly as to the breadth of the choice-of-law clause.
A.
Kabbage Has Not Made the Required Showing that Plaintiffs Agreed
or Were Otherwise on Notice of the Terms of Service.

First, Kabbage has made no showing whatsoever that Plaintiffs agreed to or were
otherwise on constructive notice of the ToS. Kabbage does not even attempt to establish
that Plaintiffs so much as viewed, let alone manifested affirmative assent to the ToS.
See, e.g., Thornton v. Uber Techs., Inc., 359 Ga. App. 790, 794, (2021) (holding trial
court erred in finding assent to terms and conditions as a matter of law because evidence
raised questions as to whether party had the opportunity to see them); Fridman v. 1-800
Contacts, Inc., 554 F. Supp.3d 1252, 1260 (S.D. Fla. 2021) (“Therefore, the Court does
not find that Plaintiff was on actual notice of the Terms.”).
Kabbage’s ToS appear to be a browsewrap agreement. (See MTD at 5-6, citing
ToS, General & Acceptance, stating that by using the website and/or using Kabbage’s
services, “you signify your assent to both these terms and conditions.”) But, once again,
Kabbage has completely failed to establish the validity of any browsewrap agreement,
the enforceability of which turns on whether the website puts a reasonably prudent user

10
The second cited sentence is a forum selection clause, which merely mandates
where a plaintiff can initiate suit. Regardless of the applicability of the ToS to the
instant lawsuit, this sentence is irrelevant as Plaintiffs have filed suit in this Court.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 27 of 48

on inquiry notice of the terms of the contract which, in turn, focuses on the clarity and
conspicuousness of the terms. See, e.g., Babcock v. Neutron Hold., Inc., 454 F. Supp.3d
1222, 1230 (S.D. Fla. 2020) (citations & quotations omitted); Fridman, 554 F. Supp.3d
at 1260 (finding a browsewrap agreement unenforceable because “the record does not
support the conclusion that Plaintiff was on constructive notice of the Website’s Terms
. . .”); SeeIT Strat. Grp., Inc. v. Allday Consult. Grp., L.L.C., 975 F. Supp.2d 1267,
1282-83 (S.D. Fla. 2013) (finding no mutual assent to the terms of a browsewrap
agreement). Kabbage has not established any mutual assent regarding the purported
applicability of its ToS.
B.
Regardless of Whether the Terms of Service Apply, Their Limited
Scope Does Not Impact Plaintiffs’ State Consumer Law Claims.

Second, Kabbage’s choice-of-law provision is not nearly as broad and
comprehensive as it would have this Court believe, and it certainly does not prohibit
Plaintiffs’ state law claims. As noted above, the ToS’ choice of law provision is very
narrow: “[t]hese [ToS] shall be governed by the internal substantive laws of the State
of Georgia, without respect to its conflict of laws principles.” And, Kabbage, in turn,
defines the term ‘Service’ very narrowly; “BY USING AND/OR VISITING THIS
WEBSITE AND/OR USING THE KABBAGE, INC. SERVICES (specifically,
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 28 of 48

inputting
your
user
id
in
the
space
provided
on
various
pages
of
the kservicing.com website, the ‘Services’).”11
Thus, even if Kabbage was able to demonstrate that Plaintiffs assented or were
on constructive notice of the ToS, the choice-of-law provision would only apply to
claims alleging violation of the ToS themselves, and does not apply to extra-contractual
or statutory claims. See, e.g., Mesa Air Grp., Inc. v. Delta Air Lines, Inc., No. 1:08-CV-
1334-CC, 2010 WL 11508953, at *20 (N.D. Ga. May 17, 2010) (stating that “[n]o
Georgia case has ever held that [a choice of law provision] will bring in the entire body
of law of the chosen state”) (citation omitted). Here, Plaintiffs are not alleging an action
in contract; rather, they assert consumer statutory claims and Kabbage’s ToS does not
prohibit the maintenance of those claims.
III.
KABBAGE FOMENTS A NUMBER OF BASES TO DISMISS A CLAIM
WHICH PLAINTIFFS HAVE NOT ALLEGED.
While Plaintiffs marvel at the “kitchen sink” approach that Kabbage employs in
an effort to obtain dismissal, see MTD at 13-17 (arguing lack of notice, standing, some
federal preemption basis and lack of damages), the simple truth of the matter is that
Plaintiffs have not asserted a claim under Georgia’s Fair Business Practices Act at all
and therefore, Kabbage’s arguments are completely inapplicable.

11
See “Kabbage, Inc. Terms of Service,” available at
https://www.kservicing.com/legal/tos/, last accessed July 10, 2022.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 29 of 48

Although Kabbage is perhaps to be lauded for its “creativity,” its arguments—in
support of a claim Plaintiffs do not assert—are completely misplaced. For instance,
Kabbage contends, without any citation from the CARES Act, that “the GFPBA does
not apply because the PPP is a federal lending program subject to an existing
enforcement scheme.” (MTD at 16.) So, on one hand, when it wants to obtain dismissal
of all of Plaintiffs’ claims, Kabbage asserts that there is no private enforcement of the
CARES Act, (see MTD at 8-11), but now that it ostensibly suits its purpose in obtaining
dismissal of a non-existent claim, Kabbage asserts that the CARES Act and SBA
regulations cover these transactions. (Id. at 16.)
Turning to the Georgia statutory claim that they actually assert under the Georgia
Uniform Deceptive Trade Practices Act (“GUDTPA”), Plaintiffs have set forth
sufficient factual allegations giving rise to a plausible claim. (Compl., ¶¶ 80-81, 110,
113-141, 208-212, 271-278.) Specifically, Plaintiffs allege that Kabbage engaged in
deceptive trade practices that have caused harm and are likely to continue to cause
future harm. Those allegations are more than sufficient to give rise to a viable claim
for violation of the GUDTPA. See Amin v. Mercedes-Benz USA, LLC, 349 F. Supp.3d
1338, 1360 (N.D. Ga. 2018) (denying motion to dismiss GUDTPA claim where
plaintiffs plausibly alleged that they are “likely to be damaged by [this] deceptive trade
practice”). Moreover, Plaintiffs have standing to assert to assert their GUDTPA claim.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 30 of 48

See Bolinger v. First Multiple Listing Serv., Inc., 838 F. Supp.2d 1340, 1364 (N.D. Ga.
2012) (stating that “[t]o have standing to seek injunctive relief under the [Georgia]
UDTPA, a plaintiff must show ... that she is likely to be damaged in the future by some
deceptive trade practice of the defendant”).12
IV.
PLAINTIFFS
HAVE
PLAUSIBLY
ALLEGED
VIOLATION
OF
NUMEROUS STATES’ CONSUMER FRAUD CLAIMS.
In support of dismissal of Plaintiffs’ various state consumer law claims, Kabbage
has the temerity to assert that none of its alleged conduct was unfair, deceptive or
unlawful, and that Plaintiffs have not plead reliance and damages. (See generally MTD
at 2, 14 & 17-30.) These arguments are each unavailing.
A.
Kabbage’s Conduct is the Epitome of Unfair.
Kabbage contends Plaintiffs have not pled a legally viable claim for violations of
California’s Unfair Competition Law (“UCL”),13 the North Carolina Unfair and

12
Kabbage has not moved to dismiss this claim or addressed it in any respect in its
Motion and therefore it may not raise any arguments in support of dismissal of this
claim in its reply brief. See, e.g., IOU Cent., Inc. v. Shore App. Conn’n Inc., No. 1:20-
CV-2367-MLB, 2021 WL 1061817, at *5 (N.D. Ga. Mar. 18, 2021) (citation omitted)
(explaining it need not address issue raised for first time in reply brief); See, e.g., Lovett
v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (declining to consider argument raised for
first time in reply brief); Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591
F.3d 1337, 1352 n. 11 (11th Cir. 2009) (same).

13
Section 17200 of the California Business & Professions Code concerns unfair
competition and prohibited activities and provides that “unfair competition shall mean
and include any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. &
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 31 of 48

Deceptive Trade Practices Act,14 nor the Florida Deceptive and Unfair Trade Practices
Act (“FDUPTA”)15 because none of the conduct alleged was unfair, fraudulent or
unlawful. (See MTD at 17-23.)
Although the conduct sufficient to constitute an unfair or deceptive trade practice
“is a somewhat nebulous concept,” and depends on the circumstances of the particular
case, a trade practice will be deemed “unfair” “when it offends established public policy
as well as when the practice is immoral, unethical, oppressive, unscrupulous, or
substantially injurious to consumers.” See, e.g., Gilbane Bldg. Co. v. Fed. Reserve Bank
of Richmond, 80 F.3d 895, 902 (4th Cir. 1996); Bookworld Trade, Inc. v. Daughters of
St. Paul, Inc., 532 F. Supp. 2d 1350, 1364 (M.D. Fla. 2007); Ryan-Beedy v. Bank of
New York Mellon, 293 F. Supp. 3d 1101 (E.D. Cal. 2018) (citation omitted). Or, as

Prof. Code § 17200. Each prong of the UCL is a separate and distinct theory of liability;
thus, pleading any one of the prongs is sufficient to state a claim for relief. Lozano v.
AT&T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007) (citation omitted).

14
To state a cause of action under North Carolina’s UDTPA, plaintiffs must allege:
(i) conduct constituting an “unfair or deceptive act or practice;” (ii) conduct “in or
affecting commerce” and (iii) that such conduct proximately caused actual injury to
plaintiff. See Food Lion, Inc. v. Cap. Cities/ABC Inc., 951 F. Supp. 1224, 1230
(M.D.N.C. 1996) (denying defendant’s motion to dismiss the UDTPA claim).

15
To plead a claim under FDUTPA, a plaintiff must plausibly allege: “(i) a
deceptive act or unfair practice; (ii) causation and (iii) actual damages.” Kertesz v. Net
Transactions, Ltd., 635 F. Supp. 2d 1339, 1348 (S.D. Fla. 2009) (quoting City First
Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th DCA 2008)).

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 32 of 48

Kabbage points out, “[u]nfair under the UCL means a practice where harm to the victim
outweighs its benefits.” (MTD at 19.)
Kabbage goes to great lengths to distort the record in attempting to convince this
Court that nothing that it did could possibly be construed as unfair as a matter of law,
and that because there is nothing to see here, the case should be dismissed in its entirety.
First, Kabbage claims “[t]he processing of loan applications and provision of loan
money at the outset of the pandemic was to stave off the existential threats facing these
borrowers.” (Id.) While that statement is likely true in a vacuum, Kabbage only did
one of those things (it only processed applications and did not lend any money), and it
is now the subject of a Congressional and federal investigation for its inept handling of
those applications.
Undaunted, Kabbage then claims that “[a]bsent the work of KServicing and other
similarly-situated servicers, businesses without prior existing relationships were likely
facing financial ruin and the shuttering of their businesses.” (Id.) (citing Compl., ¶ 61,
which does not say what Kabbage contends it does). Kabbage concludes its self-
congratulatory spiel by stating that “[i]n light of the dire need of cash infusions at the
height of the COVID-19 pandemic, and KServicing’s assistance to borrowers during
this period, Plaintiffs cannot meet this provision.” (MTD at 20.) Kabbage does not
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 33 of 48

actually address any of the allegations in the Complaint just blandly contends that PPP
loans were a good thing, which is not in dispute.
To recap, Kabbage (i) did not fund any PPP loans whatsoever; (ii) negligently (at
best) processed PPP loan applications while conducting little to no diligence (iii) which
led to the highest incidences of fraud of any participant in the PPP program16 (iv) and
for which it received $330 million dollars (v) then became the target of a Congressional
and federal investigation (vii) then sold itself to American Express for nearly a billion
dollars (viii) and negligently and incompetently serviced PPP loans so badly that
numerous articles are written about its sheer ineptitude and the thousands and thousands
of lost hours, stress, anxiety not to mention lost credit opportunities and other issues
resulting from Kabbage’s self-serving decision to prolong the forgiveness process as
long as possible so that it may collect additional untoward “tens of millions of dollars.”
(See Compl., ¶¶ 8, 65, 80-81 & 113-141.)
As detailed in the Complaint, there are tens of thousands of borrowers who have
been severely impacted by Kabbage’s seemingly inexhaustible greed and abject
incompetence. (See id., ¶¶ 3, 10, 22, 117 & 221.) Those people have spent countless
hours tracking down irrelevant paperwork, attempting to speak with Kabbage customer

16
According to published reports, Kabbage accounts for 20 percent of all suspicious
PPP loans, casting significant doubt on the adequacy of its onboarding and fraud
detection process.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 34 of 48

service, waiting (months and months) for the Kabbage portal to become operational, re-
submitting loan forgiveness applications and related documents numerous times—all
because Kabbage wants to extract additional millions of dollars in servicing fees from
its partner banks before it shutters operations. (See id., ¶¶ 13, 81 & 123-133.) But,
according to Kabbage, “Plaintiffs have simply failed to plead any facts that any alleged
harm outweighs the benefits, as required.” (MTD at 20.) That statement is categorically
untrue.
Given the foregoing, it is perhaps not surprising that at least with respect to North
Carolina’s UDTPA, Kabbage has—perhaps recognizing that it does not have a cogent
defense—completely ignored the unfair prong of the statute. (See id. at 21-22) (citing
case for proposition that under the UDTPA, plaintiff must show an “unfair or deceptive
act or practice” and arguing that its alleged conduct was not fraudulent or deceptive).
And, it is similarly not surprising that Kabbage has chosen to cherry-pick a single
allegation (that it fraudulently attempts to induce borrowers to sign forgiveness
applications with the forgiveness amount pre-populated to “$0.00”) to claim that its
conduct is not deceptive, completely ignoring all other allegations of unfair and
deceptive conduct. (See Compl., ¶¶ 142-159.)
Kabbage’s conduct related to the pre-populated loan forgiveness applications is
an unfair and deceptive act or practice that is actionable under North Carolina’s
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 35 of 48

UDTPA. While discovery is needed to flesh out the situation in its entirety, it appears
that Kabbage would send denied forgiveness applicants a second application with the
amount to be forgiven set to $0.00, meaning that if the application was approved, no
amount of the loan would be forgiven, and Kabbage could then begin collection efforts.
Kabbage did not inform applicants regarding the import of signing these forms, and
such conduct is an unfair or deceptive practice.17
B.
Plaintiffs Have Plausibly Alleged Fraudulent Conduct.
Kabbage next argues that Plaintiffs’ allegations do not amount to fraudulent
conduct because they “are not sufficient to meet the heightened pleading standard for
fraud claims.” (See MTD at 18.) The Complaint is replete with specific quotations of
Kabbage’s fraudulent misstatements regarding its loan servicing abilities. (Compare,
e.g., Compl., 22, 272 & 297, with Raber v. Osprey Alaska, Inc., 187 F.R.D. 675 (M.D.
Fla. 1999) (“When pleading fraud, plaintiff should quote or paraphrase the alleged
fraudulent misrepresentations made by the defendant. F.R.C.P. 9(b), 28 U.S.C.A.”).)
C.
Plaintiffs Have Plausibly Alleged Unlawful Conduct.

17
Nothing that Kabbage says in its MTD regarding SBA regulations changes that
conclusion as Plaintiffs are not dictating what amounts Kabbage can include on
forgiveness applications; rather, Plaintiffs contend that Kabbage must provide complete
disclosure regarding the ramifications of those applications.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 36 of 48

Finally, a business practice is “unlawful” in violation of California’s UCL if it
violates another state or federal law as the statute “borrows” violations of other laws
and treats them as independently actionable. See Perea v. Walgreen Co., 939 F.Supp.2d
1026, 1040 (C.D. Cal. 2013). In order to state a claim for UCL, a plaintiff must identify
an underlying statute that was violated. See, e.g., Ingels v. Westwood One Broad. Servs.,
Inc., 129 Cal.App.4th 1050, 1060 (2005). Plaintiffs contend that Kabbage violated
California’s Rosenthal Act, Cal. Civ. Code § 1788 and the federal Fair Debt Collections
Practice Act, 15 U.S.C. § 1692. (See Compl., ¶ 258.)
Kabbage claims that it could not possibly violate either statute because it “is not
a debt collector as defined by the FDCPA” and the debt that Kabbage is servicing is not
“consumer debt.” (MTD at 20 fns. 6 & 7.) Neither argument is valid. First, there is no
question that Kabbage is a debt collector pursuant to the FDCPAas 15 U.S.C. § 1692a(6)
sets forth, in relevant part, that an entity that uses an instrumentality of interstate
commerce having a “principal purpose” of debt collection is a debt collector. See, e.g.,
Sanchez v. L. Off. of Armo, No. 120CV00163NONESKO, 2021 WL 1214559, at *4
(E.D. Cal. Mar. 31, 2021). Kabbage’s sole reason for existing is to service PPP loans
and to collect the amounts owed by borrowers for another entity, the funding banks.
Moreover, Plaintiffs’ Complaint sets forth examples of Kabbage sending past due
statements and requests for payments to borrowers located throughout the country, with
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 37 of 48

the “principal purpose” of debt collection. (See Compl., ¶¶ 137-141 & 189-191.); See,
e.g., Gerstle v. Nat’l Credit Adjusters, LLC, 76 F.Supp.3d 503, 512 (S.D.N.Y. 2015)
(sending debt collection letters can be sufficient to qualify one as a “debt collector”
within the meaning of the FDCPA);18 United States v. Sutcliffe, 505 F.3d 944 (9th Cir.
2007) (internet is an instrumentality and channel of interstate commerce).
Second, as the Complaint alleges, Plaintiffs are undoubtedly natural persons and
the use of the loan funds for “rent, utilities and interest on mortgage” qualifies the PPP
loans at issues as “credit consumer transactions” pursuant to the FDCPA and the
Rosenthal Act. See, e.g., Castillo v. Nationstar Mortg. LLC, No. 15-CV-01743-BLF,
2016 WL 6873526, at *5 (N.D. Cal. Nov. 22, 2016) (“A mortgage on a single family
home, which is at issue in this case, is a consumer debt”).
D.
Plaintiffs Have Plausibly Alleged Reliance and Damages.
Kabbage, on numerous occasions throughout its brief (including in support of
dismissal of the non-existent GFPBA claim), falsely states that “nowhere in the
Complaint do Plaintiffs allege they were damaged as a result of relying on statements

18
Kabbage is likewise a “debt collector” under the Rosenthal Act because “the
definition of ‘debt collector’ found in the [Rosenthal Act] is broader than that contained
in the FDCPA.” Izenberg v. ETS Servs., LLC, 589 F. Supp.2d 1193, 1199 (C.D. Cal.
2008).

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 38 of 48

made by [Kabbage].” (MTD at 17 stating that Plaintiffs have failed to plead any facts
establishing reliance on the alleged misrepresentations or an injury in fact.)
To begin, as to causation and reliance, Kabbage’s deceptive marketing of its PPP
loan servicing abilities was obviously likely to deceive consumers acting reasonably, as
evidenced by the sheer magnitude of Kabbage’s PPP operations and the number of
Kabbage borrowers who were deceived. (See Compl., ¶ 112) (“Kabbage ultimately
became one of the largest PPP lenders in the country by volume of loans, with nearly
300,000 approved applications that amounted to over $7 billion in small business
funding.”).) Yet, Kabbage did not live up to its promises, falling far short of the overall
forgiveness rate of non-Kabbage-serviced PPP loans.
Moreover, Kabbage mistakenly conflates “causation” with reliance as it is well-
settled Florida law that FDUTPA does not require a plaintiff to prove actual reliance on
the alleged conduct.19 See Randolph v. J.M. Smucker Co., 303 F.R.D. 679 (S.D. Fla.
2014) (citation omitted). Instead of actual reliance, a plaintiff must simply prove that
“the alleged practice was likely to deceive a consumer acting reasonably in the same
circumstances.” Id. This same standard applies whether the action is brought by an

19
Even so, Plaintiffs allege that, based on Kabbage’s fraudulent marketing and
misrepresentations of its ability to process and service PPP loans, they “trusted Kabbage
to assist them in obtaining legitimate government resources, to which they were fully
entitled, in their time of need.” (Compl., ¶ 84.)

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 39 of 48

individual or as a class action. See Cold Stone Creamery, Inc. v. Lenora Foods I, LLC,
332 Fed.Appx. 565, 567 (11th Cir. 2009) (“[M]embers of a class proceeding under
[FDUTPA] need not prove individual reliance on the alleged representation.”)); Davis
v. Powertel, Inc., 776 So.2d 971, 973 (Fla. 1st DCA 2000) (“A party asserting a
deceptive trade practice claim need not show actual reliance on the representation or
omission at issue.”).
Plaintiffs have adequately pled proximate cause under the North Carolina
UDPTA by stating that “in addition to attempting to collect[] unnecessary
documentation multiple times…and then unjustly denying his forgiveness application,
[Kabbage] has [wrongfully] initiated collection efforts against Carr.” (Compl., ¶ 159.)
See Westchester Fire Ins. Co. v. Johnson, 221 F. Supp. 2d 637, 649 (M.D.N.C. 2002)
(plaintiff can make a showing of injury and proximate cause under NCUDPTA by
demonstrating “detrimental reliance”). In other words, Plaintiff Carr detrimentally
relied upon Kabbage’s misrepresentations regarding its PPP loan servicing abilities and
has suffered and continues to suffer injury caused by Kabbage’s deceptive and
fraudulent conduct. (See, e.g., Compl., ¶¶ 80-81, 113-141 & 148-159.)
Finally, Plaintiffs allege actual damages sufficient to sustain their claims. The
Complaint is replete with allegations of Plaintiffs’ injuries as a result of Kabbage’s
conduct. (See Compl., ¶¶ 80-81, 110, 113-141, 148-159, 163, 167-177, 181-192, 198-
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 40 of 48

203 & 208-212.) Because Plaintiffs are stuck in an endless loop of applying for
forgiveness of their PPP loans and being forced to wait, submit repetitive unnecessary
documentation, communicate with obstructive customer service representatives and
given misleading information and instructions, they adequately plead damages.
E.
Kabbage’s Conduct Affects Trade or Commerce.
Kabbage contends Plaintiffs have not pled that the transactions between itself and
Plaintiffs involve “trade and commerce” as defined under Michigan, Florida and North
Carolina law. (MTD at 21-25.) As to Florida, its FDUTPA certainly applies to
Kabbage’s conduct. The term “trade or commerce” is broadly defined as “the
advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or
otherwise, of any good or service, or any property, whether tangible or intangible, or
any other article, commodity, or thing of value, wherever situated.” FLA. STAT. §
501.203(8). Kabbage clearly advertised, solicited and offered a service. The single case
Kabbage cites for the premise that its conduct is not covered by the FDUTPA is
inapposite. (See MTD at 28-29.) In Acosta v. Gustino, defendant was a debt collector
solely attempting to collect a debt on behalf of an entirely separate entity. See No. 6:11-
cv-1266-Orl-31GJK, 2012 U.S. Dist. LEXIS 130656, at *2 (M.D. Fla. Sep. 12, 2012).
Because the plaintiff was claiming it was harmed by the separate entity, and not the debt
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 41 of 48

collector, the court dismissed the FDUTPA claim. See id. The defendant in Acosta did
not advertise, solicit or offer any service to the plaintiff, as Kabbage did here.
Kabbage’s muddled argument regarding whether its conduct is “an act affecting
commerce” and therefore covered by North Carolina’s UDTPA misstates the law. (See
MTD at 24.) For purposes of the UDTPA, “‘commerce’ includes all business activities,
however denominated…” N.C. Gen. Stat. Ann. § 75-1.1; see also Dalton v. Camp, 353
N.C. 647, 656 (2001) (“[T]he statutory definition of commerce crosses expansive
parameters”). Kabbage’s conduct is precisely the type of conduct the UDPTA is
intended to cover, and Plaintiff Carr—who sought Kabbage’s services in order to
maintain the “day-to-day activities” of his business—may properly bring a UDPTA
claim. See, e.g., McDonald v. Scarboro, 91 N.C.App. 13, 370 S.E.2d 680, 683 (stating
that the UDTPA does not “protect only individual consumers, but serve[s] to protect
business persons as well.”).
Finally, in order for the Michigan statute, the MCPA, to apply, Plaintiffs must
demonstrate the relation of Kabbage’s conduct to “trade or commerce,” which explicitly
“includes the advertising, solicitation…or distribution of a service or property, tangible
or intangible, real, personal, or mixed, or any other article, or a business opportunity.”
M.C.L. § 445.902(d). “The MPCA is a remedial statutory scheme designed to prohibit
unfair practices in trade or commerce, and must be liberally construed to achieve its
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 42 of 48

intended goals.” Newton v. West, 262 Mich. App. 434, 437 (2004) (citation omitted).
Accordingly, the “trade or commerce” requirement has been found to be satisfied,
despite the absence of a specific transaction between the parties involving the purchase
of consumer goods. See, e.g., Action Auto Glass v. Auto Glass Spec., 134 F.Supp.2d
897 (W.D. Mich. 2001).
Kabbage’s deceptive conduct is actionable under the plain language of the MCPA
because it is related to a service as well as a business opportunity (the PPP loans). See,
e.g., Allan v. M&S Mortg. Co., 138 Mich. App. 28 (1984) (stating that alleged conduct,
including lender’s advertising and selling its services would fall within statutory
definition of “trade or commerce” for purposes of MCPA). Further, Kabbage’s
deceptive conduct is actionable under the MCPA because, as Plaintiffs pled, they have
repeatedly been harmed by being forced to submit repetitive and unnecessary
documentation, being given conflicting information regarding the status of their loans
and being fraudulently and deceptively sent wrongfully pre-populated loan forgiveness
applications, all so that Kabbage can continue to collect processing fees. (See Compl.,
¶¶ 164-177 & 288-292.)20

20
Other than asserting that the CARES Act provides some sort of blanket immunity
for all of its conduct—however unfair, fraudulent or unlawful—Kabbage does not
attack Plaintiff’s unjust enrichment claim. As detailed in the Complaint (and herein),
Plaintiffs have clearly conferred a benefit on Kabbage for which it would be inequitable
for them to retain. (See Compl., ¶¶ 6-8, 67-71, 117-118 & 250-251.) See, e.g., Parks
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 43 of 48

V.
PLAINTIFFS CARR, EDWARD FORD SERVICES LLC AND MORGAN
HAVE NOT FAILED TO AVAIL THEMSELVES OF ANY PURPORTED
ADMINISTRATIVE REMEDY.
Kabbage argues that the California UCL, the North Carolina UDTPA and the
MPCA claims “(Counts 3, 5, and 6) should be dismissed for failure to exhaust
administrative remedies.” (MTD at 31.) Kabbage asserts that Plaintiffs Carr, Edward
Ford Services LLC and Morgan “allege that they received loan forgiveness denials,
therefore, their loan forgiveness application processed are governed by 13 C.F.R. § 120
(2021).” (Id.) The problem with Kabbage’s argument is that, as alleged in the
Complaint, Kabbage’s servicing procedures were so haphazard and incompetent that
these Plaintiffs would receive (in no particular order) denial of their applications, and
then an additional application (usually pre-populated to $0.00 for the forgiveness
amount) or any other number of random and unhelpful communications from Kabbage.
Moreover, when these Plaintiffs contacted SBA regarding their loans and their

v. Thompson Builders, Inc., 296 Ga.App. 794, 706, 675 S.E.2d 583, 585 (2009);
Hollifield v. Monte Vista Bib. Gardens, Inc., 251 Ga. App. 124, 131 (2001). Kabbage
induced Plaintiffs to choose it as their PPP loan servicer by falsely and deceptively
marketing its PPP loan originating abilities for which it “received between $330 million
and $340 million in fees on $7 billion in approved PPP loans.” (Compl., ¶ 8.) Not
content with a mere $330 million and another billion from American Express, Kabbage
deceptively represented its loan servicing abilities and failed to timely and to
competently process Plaintiffs’ and the class members’ PPP loan forgiveness
applications and therefore sought to obtain additional “tens of millions of dollars.”
Plaintiffs’ unjust enrichment claim is well-pled, and equity demands that Kabbage be
disgorged of the immense benefits it has obtained at Plaintiffs’ expense.
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 44 of 48

forgiveness status, they were told to contact Kabbage, their loan servicer. These
Plaintiffs have not failed to avail themselves of any purported administrative remedy as
Plaintiffs explain throughout the Complaint the sheer impossibility of obtaining any
relief from the SBA and/or Kabbage.
Finally, Kabbage tepidly concludes with an incredibly circular argument that
because all of Plaintiffs’ claims fail so too must their Declaratory Judgment Act claim
and their request for attorneys’ fees under O.C.G.A. § 13-6-11. (See MTD at 35.) As
demonstrated above, Plaintiffs have set forth sufficient factual detail to raise their right
to relief above a purely speculative level. Their claims are not precluded or otherwise
barred by the CARES Act or any SBA regulation, and, assuming they apply, Kabbage’s
ToS do not prohibit the maintenance of Plaintiffs’ non-Georgia statutory claims.
Plaintiffs are entitled to their “day in court” regarding their claims, and the MTD should
be dismissed in its entirety.21

21
To the extent this Court is inclined to dismiss any of the claims asserted, Plaintiffs
respectfully request that they be provided leave to re-plead. See, e.g., Hunt v. Nationstar
Mortg., No. 21-10398, at *9 (11th Cir. May 27, 2022) (stating that “[w]e generally
require district courts to allow a litigant at least one chance to remedy any deficiencies
before dismissing the complaint with prejudice, where a more carefully drafted
complaint might state a claim”).
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 45 of 48

CONCLUSION
For the foregoing reasons, Plaintiffs Jason Carr, Vicki LeMaster, Edward Ford
Services LLC, Carlton Morgan¸ 365 Sun LLC and Candice Worthy respectfully request
this Honorable Court to deny Defendant Kabbage, Inc. d/b/a KServicing’s Motion to
Dismiss in its entirety, and to award all such other relief as is equitable and just.
Respectfully submitted this 11th day of July, 2022.

By:/s/ MaryBeth V. Gibson
MaryBeth V. Gibson, Esq.
Georgia Bar No. 725843
The Finley Firm, P.C.
Piedmont Center
3535 Piedmont Rd.
Building 14, Suite 230
Atlanta, GA 30305
(404) 978-6971
MGibson@thefinleyfirm.com

Shane R. Heskin, Esq. (pro hac vice
admission forthcoming)
Justin E. Proper, Esq.
Georgia Bar # 141782
WHITE & WILLIAMS, LLP
1650 Market Street, Suite 1800
Philadelphia, PA 19103
(215) 864-6329
heskins@whiteandwilliams.com
properj@whiteandwilliams.com

Attorneys for Plaintiffs & the Putative
Classes

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 46 of 48

LOCAL RULE 7.1 CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing pleading filed with the Clerk of Court has been
prepared in 14-point Times New Roman font in accordance with Local Rule 5.1(C).

Dated: July 11, 2022.

/s/ MaryBeth V. Gibson

MARYBETH V. GIBSON

Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 47 of 48

CERTIFICATE OF SERVICE

I certify that on July 11, 2022, I filed the foregoing PLAINTIFFS’
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND REQUEST
FOR ORAL ARGUMENT with the Clerk of Court using the CM/ECF system, which
will automatically send e-mail notification of such filing to all counsel of record.

/s/MaryBeth V. Gibson

MaryBeth V. Gibson

Uchenna Ekuma-Nkama
Alizé D. Mitchell
DENTONS US LLP
303 Peachtree Street, N.E.
Suite 5300
Atlanta, GA 30308
uchenna.ekuma-nkama@dentons.com

Drew W. Marrocco
(pro hac vice forthcoming)
1900 K Street NW
Washington, DC 20006
drew.marrocco@dentons.com

Tomasita L. Sherer
(pro hac vice forthcoming)
1221 Avenue of the Americas
New York, NY 10020
tomasita.sherer@dentons.com

Counsel for Defendant KServicing
Case 1:22-cv-01249-VMC Document 18 Filed 07/11/22 Page 48 of 48

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Plaintiffs’ Opposition to Motion to Dismiss — Carr v. Kabbage

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