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Home Source documents Court filing — No. 24-2355 (Dkt. 48, 9th Cir.)

Court filing — No. 24-2355 (Dkt. 48, 9th Cir.)

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Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 1 of 8




                     No. 24-2355




IN THE UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT




               PAYSERVICES BANK,

                           Plaintiff-Appellant,

                          V.

FEDERAL RESERVE BANK OF SAN FRANCISCO,

                           Defendant-Appellee.

  On Appeal from the United States District Court for
                the District of Idaho
               No. 1:23-cv-00305-REP
           Hon. Raymond E. Patricco, Jr.




           APPELLEE’S FURTHER
    SUPPLEMENTAL EXCERPTS OF RECORD
                    Volume 1 of 1




            Jonathan K. Youngwood
            Meredith Karp
            Simpson Thacher & Bartlett LLP
            425 Lexington Avenue
            New York, NY 10017
            Telephone: (212) 455-3539
            jyoungwood@stblaw.com
            meredith.karp@stblaw.com
            Attorneys for Defendant-Appellee
            Federal Reserve Bank of San Francisco
                  Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 2 of 8




                                            INDEX

Cease-and-Desist Order, dated October 18, 2024 ................................... 3
                     Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 3 of 8




RAUL R. LABRADOR
ATTORNEY GENERAL

JAMES J. SIMERI
Chief of Consumer Protection Division

NATHAN H. NIELSON, ISB No. 9234
Deputy Attorney General
954 W. Jefferson Street, 2nd Floor
Boise, Idaho 83702
Telephone: (208) 334-4543
Facsimile: (208) 334-4151
Email: nathan.nielson@ag.idaho.gov
Attorneys for the Department of Finance

            BEFORE THE DIRECTOR OF THE DEPARTMENT OF FINANCE
                          OF THE STATE OF IDAHO

 In the Matter of:

 PAYSERVICES, INC. AND PAYSERVICES                       Docket No. 2024-41-02
 BANK
                                                         ORDER TO CEASE AND DESIST
       Respondents.


       The Director of the Idaho Department of Finance ("Department"), being authorized to

administer and enforce the Idaho Bank Act, Idaho Code § 26-101 et seq. (the "Act"), has

determined based on the following Findings of Fact and Conclusions of Law, that it is in the public

interest to order PayServices, Inc. and PayServices Bank (collectively, "PayServices") to

immediately CEASE AND DESIST from acts, practices, or omissions that violate the Act.

                                     FINDINGS OF FACT

       1.      On April 8, 2022, PayServices applied to the Department for a bank charter.

       2.      On August 3, 2022, PayServices received preliminary, conditional approval to

engage in the business of banking from the Department.

       3.      On September 12, 2022, the Department granted a waiver to PayServices to use the


ORDER TO CEASE AND DESIST — Page 1 of 6



                                             FER-003
                   Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 4 of 8




word "bank" in its name in the state of Idaho.

       4.      On May 4, 2023, the Department notified PayServices that if it was unable to satisfy

all conditional approval requirements from the preliminary approval letter by August 3, 2023, that

the preliminary approval would expire. The Department also notified PayServices that if the

conditions were not met by that date, it could submit a new application for a bank charter.

       5.      On August 4, 2023, The Department notified PayServices that it had not met the

conditions to receive a bank charter. The Department notified PayServices that if it was continuing

to seek a bank charter, that it was required to resubmit an updated application by August 25, 2023.

       6.      PayServices timely provided the requested updated application documents.

       7.      On October 16, 2023, the Department granted a one-time extension of the

preliminary charter approval to October 15, 2024. The Department notified PayServices that if

the conditions outlined in the August 3, 2022, letter were not met by October 15, 2024, and if

PayServices still sought a charter from the Department, it would have to submit a new application.

        8.     PayServices failed to meet the conditions outlined in the August 3, 2022, letter.

        9.     On October 16, 2024, the Department notified PayServices that the preliminary

approval had expired and was now terminated. The Department also notified PayServices that it

could submit a new application if it was still interested in seeking an Idaho bank charter.

        10.    On October 16, 2024, the Department rescinded its September 12, 2022, waiver

allowing PayServices to use the word "bank" in its name. The Department notified PayServices

that "no person may advertise or transact business in this state under a name or title that contains

the word `bank,' banker," bancorp,"saving bank,' `trust company,' or a word or words of similar

import, unless the person has been granted a charter to engage in banking or trust business in this

state by the director, or unless the director has granted the person a waiver from this prohibition .


ORDER TO CEASE AND DESIST — Page 2 of 6




                                              FER-004
                   Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 5 of 8




. . ." Idaho Code § 26-1202. The Department further notified PayServices that it must refrain from

using "PayServices Bank" and "bank" in any transactions, written communications, and

advertisements.

       11.     On October 16, 2024, Lionel Danenberg, an executive of PayServices,

corresponded with the Department and stated that PayServices Bank rejected the Department's

recission and refused to stop using "PayServices Bank" and "bank."

                                   CONCLUSIONS OF LAW

                            AUTHORITY OF THE DEPARTMENT

       12.     The Department has a duty to administer and enforce the Act.

       13.     Idaho Code § 26-1115 provides as follows, in pertinent part:

               If the director of the department of finance finds that . . . any person
               has violated or is about to violate any provision of this [Idaho Bank
               Act], any rule or order issued under the act, any condition imposed
               in writing by the director, or any written agreement entered into with
               the director, the director may order the . . . person to cease and desist
               from any such violation or practice. The order shall be issued
               pursuant to chapter 52, title 67, Idaho Code.


     PAYSERVICES' CONTINUED USE OF THE WORD BANK VIOLATES THE ACT

       14.     PayServices is violating Idaho Code § 26-1202 by refusing to refrain from using

the name "PayServices Bank" or the word "bank."

        15.    Idaho Code § 26-1202 provides as follows, in pertinent part:

               . . . [N]o person may advertise or transact business in this state under
               a name or title that contains the word "bank," "banker," "bancorp,"
               "savings bank," "trust company," or a word or words of similar
               import, unless the person has been granted a charter to engage in
               banking or trust business in this state by the director, or unless the
               director has granted the person a waiver from this prohibition as set
               forth in this section.



ORDER TO CEASE AND DESIST — Page 3 of 6




                                               FER-005
                                                Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 6 of 8




                 16.              As of October 16, 2024, PayServices is not a chartered bank and does not have a

waiver from the Director permitting it to use the word "bank" in its name.

                 17.              Therefore, PayServices refusal to refrain from using the word "bank" and its

ongoing use of the word bank in its name is a violation of Idaho Code § 26-1202.

                                                                              ORDER

                 The Director, having reviewed the foregoing, good cause being shown, and the public

interest being served thereby,

                 NOW, THEREFORE, the Director HEREBY FINDS that PayServices has violated the

Idaho Bank Act as set forth above.

                 Pursuant to Idaho Code §§ 26-1115 & 1202, PAYSERVICES IS HEREBY ORDERED

that it and its agents and employees immediately CEASE AND DESIST from acts, practices, or

omissions which constitute a violation of the Act. PayServices may not advertise or transact

business in Idaho under a name or title that contains the word "bank," "banker," "bancorp,"

"savings bank," "trust company," or a word or words of similar import.

                 This ORDER TO CEASE AND DESIST is effective upon issuance.

                 IT IS SO ORDERED.

                 DATED this                                  I VI day of October 2024.

                                                                               STATE OF IDAHO
                 .    ,                                                        DEPARTMENT OF FINANCE
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ORDER TO CEASE AND DESIST — Page 4 of 6




                                                                              FER-006
                   Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 7 of 8




                                             NOTICE

       Pursuant to the Idaho Administrative Procedure Act, Idaho Code § 67-5201 et seq.,

Respondent may appeal from this order within twenty-eight (28) days of the service date of this

order. An appeal is filed when it is received by the Department or postmarked within the time

limits provided in this Notice. Any such appeal must be in writing and sent via mail OR via email

to:

       Salvador Cruz
       Financial Institutions Bureau Chief
       Idaho Department of Finance
       P.O. Box 83720
       Boise, Idaho 83720-0031
       salvador.cruz@finance.idaho.gov

An appeal may also be served on the Department's counsel, Nathan H. Nielson, Deputy Attorney

General, at nathan.nielson@ag.idaho.gov.

       If the Applicant timely appeals this action, the Department will assign the contested case

proceeding to the Office of Administrative Hearings pursuant to Idaho Code § 67-5280(2)(a).

Proceedings will be conducted in accordance with the Idaho Administrative Procedure Act, Idaho

Code § 67-5201 et seq. and the Idaho Rules of Administrative Procedure (IDAPA 62.01.01).




ORDER TO CEASE AND DESIST — Page 5 of 6




                                             FER-007
                Case: 24-2355, 01/17/2025, DktEntry: 48.1, Page 8 of 8




                              CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that on thisle day of October, 2024, I caused a true and correct
copy of the foregoing fully executed ORDER TO CEASE AND DESIST to be served on the
following by the designated means:


Lionel Danenberg                                El U.S. Mail, Postage Paid
PayServices                                     E] Certified mail
2234 North Federal Highway, #3035               ❑ Facsimile
Boca Raton, FL 33431                            El Email: lionel@payservices.com




                                                Ailen Evaniuck
                                                Paralegal




ORDER TO CEASE AND DESIST - Page 6 of 6



                                        FER-008


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