Fermin v. Direct Merchants

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 23, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50199
Summary Calendar
FREDERICK C. FERMIN,
Plaintiff-Appellant,
versus
DIRECT MERCHANTS CREDIT CARD
BANK N.A.,
Defendant-
Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-138
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Before SMITH, DEMOSS and STEWART, Circuit Judge.
PER CURIAM:*
Frederick C. Fermin appeals the district court’s grant of Direct Merchants’ motion for
summary judgment. Fermin argues that the interest rate on the credit card issued to him by Direct
Merchants was usurious under Texas, federal, and Arizona law. As a national bank located in
Arizona, Direct Merchants may charge interest at the rate allowed by Arizona law. 12 U.S.C. § 85;

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Marquette Nat’l Bank of Minneapolis v. First of Omaha Serv. Corp., 439 U.S. 299, 308 (1978).
Fermin does not dispute that the interest charged him was set by contract via the Cardholder’s
Agreement and its changes or that the credit limit exceeded $10,000. Because the interest rate
charged was established by contract, it is the interest allowed by Arizona law and is not greater than
that allowed by Arizona law. See ARIZ. REV. STAT. §§ 44-1201, 44-1205(C). Thus, the interest rate
charged does not violate federal or Arizona law. Arizona Revised Statute §§ 44-1205(D) and 6-601
are inapplicable.
Fermin asserts that the Account Benefit Plan (“the Plan”), which would forgive the credit card
account balance if he died, was insurance which Direct Merchants was not licensed to sell in Texas.
Fermin asserts erroneously that the dist rict court erred by not adjudicating his claim under the
Gramm-Leach-Bliley Act (“GLBA”). Although he asserts that the Plan was insurance under 15
U.S.C. § 6712(c) of the GLBA, he does not argue that Texas has regulated as insurance contracts
such as the Plan since January 1, 1999. Fermin’s conclusional assertions do not show any error in
the district court’s determination that the Plan is not insurance under the GLBA.
Direct Merchants’ motion to strike portions of Fermin’s reply brief is DENIED as
unnecessary. See Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 384 n.9 (5th Cir. 2001).
AFFIRMED.

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