ALEXANDRIA, Va.-NCUA has asked Utah District Court Judge Dale Kimball to dismiss the American Bankers Association's claims against the agency in the approval of underserved areas for a community credit union in Utah as moot. The Department of Justice, on behalf of NCUA, filed a motion to dismiss stating that the agency's withdrawal of the underserved areas previously approved for America First Federal Credit Union, moratorium on non-multiple common bond credit unions adopting underserved areas, and proposed rule reaffirming that action leaves the judge nothing to decide. "Specifically, a case becomes moot when it becomes impossible for the court to grant `any effectual relief whatever' to the prevailing party." Because the NCUA has withdrawn the approvals, it is impossible for the court to grant the requested declaratory and injunctive relief, or "any effectual relief whatever," the memorandum in support of the motion read. Additionally, it stated, "Moreover, Plaintiffs cannot demonstrate "a `reasonable expectation' or a `demonstrated probability' that the same controversy will recur involving the same complaining party." For the reasons explained above, the NCUA's approval of another community credit union's Section 1759(c)(2) application to expand, let alone a Section 1759(c)(2) application by America First or another community credit union in the relevant regions in Utah, is highly unlikely." The "mere physical or theoretical possibility" of the challenged action recurring is not sufficient to keep the case alive, according to the brief. ABA Director of Communica-tions Charlotte Birch commented, "It was not unexpected but we don't see grounds for dismissal." The bankers had 15 days to respond after NCUA's Feb. 2 filing. Likewise, the government tried to predict their foe's next move. Justice was already preparing for the ABA's objection to a dismissal on the grounds it was a "voluntary cessation." The filing read, "The voluntary cessation of a challenged activity moots a pending matter only if `(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effect of the alleged violation.' " The motion concluded, " Even if the Court finds that Plaintiffs' claim is not constitutionally moot, it should exercise its discretion and dismiss Plaintiffs' claims under the doctrine of prudential mootness." CUNA General Counsel Eric Richard lamented the ABA's criticism of credit unions not doing enough to serve those of modest means then seeking to curtail these services. "However, we support the action of NCUA and the Justice Department in seeking a dismissal of this lawsuit," he explained. "We believe that this is the best available action to take under the circumstances, as it will serve greatly to help NCUA and, eventually, credit unions to move forward in serving their members, and potential members, into the future." One of the circumstances Richard alluded to was that Judge Kimball had already remanded a community charter approval for America First-in ABA vs. NCUA regarding Tooele Federal Credit Union-which NCUA then repealed. America First attempted to regain much of the lost field of membership through the adoption of underserved areas. The situation in Utah has been exacerbated by the election of credit union archenemy Zions Bank Chairman Harris Simmons to chair the ABA. NAFCU also lent its support to NCUA's decision in this case. NAFCU Regulatory Affairs Director Carrie Hunt said, "Given the actions NCUA has taken in the last month to respond to the ABA's challenge, we strongly believe the suit should be dismissed. At the same time, we will continue to counter the bankers' attacks on credit union fields of membership and make every effort to preserve the ability of all credit unions-regardless of their charter type-to serve their members." CUNA Associate General Counsel Mary Dunn emphasized that the trade association does not agree with the bankers that underserved areas are only for multiple group credit unions. CUNA's Federal Credit Union Subcommittee has met on NCUA's proposed rule already and will be meeting again in-person during CUNA's Governmental Affairs Conference. -

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