In In re Bate, — B.R. —-, 2011 WL 2469689 (Bkrtcy.M.D.Fla. 2011), Bankruptcy Judge Williamson held that although the National Bank Act preempts state laws that prevent or significantly interfere with the exercise by national banks of their powers, and the Florida Consumer Collection Practices Act applies generally to all creditors and prohibits inappropriate debt collection practices, the FCCPA does not prevent or significantly interfere with the business of banking. Accordingly, Judge Williamson held that the NBA does not preempt the FCCPA.


The creditor argued as follows:


The issue before this Court is whether the NBA preempts the FCCPA. In its Motion to Dismiss, Wells Fargo relies on regulations promulgated by the Office of the Comptroller of the Currency (the “OCC”) that clarify the applicability of state law to national banks.  Under the relevant federal regulations, state laws that “obstruct, impair, or condition a national bank’s ability to fully exercise its Federally authorized … lending powers do not apply to national banks.” These regulations also specify certain state laws dealing with subjects that are not viewed as being inconsistent with the real estate lending powers of national banks and apply to na-tional banks to the extent that they only incidentally affect the exercise of national banks’ real estate lending powers.    The specific areas that are not generally pre-empted are: contracts, torts, criminal law, rights to collect debts, acquisition and transfer of real property, taxation, zoning, and any other law the effect of which the OCC determines to be incidental to the lending functions of the national bank. FN9 While the inclusion within these non-preempted areas of the “rights to collect debts” FN10 could be interpreted to support the view that debt collection activities of a national bank do not fall within the scope of the federal preemption, the OCC’s interpretive history of the applicable regulations dealing with this issue indicates otherwise. That is, it is clear from this history that the reference in these regulations to the “rights to collect debts” pertains to the “existence of a bank’s right to recover a debt, not to the means the bank uses to pursue that right.” Because the “means” employed by a bank to collect a debt would necessarily bring into play laws limiting the manner in which creditors can collect debts, such as the FCCPA, the OCC’s interpretation of its own regulation would support a finding that the NBA preempts the FCCPA and its provisions would not apply to national banks.


The Court rejected the pre-emption argument on the basis that there was no express pre-emption, no field pre-emption, nor conflict pre-emption. 


Wells Fargo also contends that the FCCPA is not saved by the OCC regulation’s savings clause because as interpreted by the OCC in its interpretive letter, the savings clause’s reference to “right to collect debts” is different from the means by which a bank collects its debts.  In other words, state laws regarding national banks’ rights to collect debts are not preempted, but state laws regarding debt collection are. The question for this Court then is what level of deference do we give to the OCC’s interpretation of its regulation? ¶ . . . While the OCC has been given authority to make determinations on the preemption of consumer protection laws, its regulations relevant to this case are not of its own creation, but a codification of “principles of NBA conflict preemption that had percolated through the federal courts over several decades.”  In its Preemption Final Rule, the OCC stated that the initial proposal for the regulations proposed that “debt collection” be included in the list of state laws generally not preempted.  It later changed this to “right to collect debts” to be consistent with the Supreme Court case of National Bank v. Commonwealth. Therefore, the OCC’s interpretive letter should not be given Chevron deference. ¶ There is no significant regulatory objective that would merit preempting a state law of general applicability that is designed to protect consumers from unscrupulous and egregious activity by debt collectors. The FCCPA may restrict the frequency, procedure, and substance of contacts permitted between Wells Fargo and its customers, but it only does so to the extent of requiring that such collection contacts not be abusive, deceptive or unfair. Wells Fargo may still make loans. It may also collect on those loans, but it must abide by the FCCPA when doing so, just as every other debt collector in Florida must do. Therefore, the FCCPA does not prevent or significantly interfere with Wells Fargo’s exercise of its powers under the NBA. Accordingly, the NBA does not preempt the FCCPA.


(See also Hood v. Santa Barbara Bank & Trust, 143 Cal.App.4th 526, 543 (2006) (“California’s debt collection law, the Rosenthal Fair Debt Collection Practices Act, does not have more than an incidental effect on respondents. Federal courts recognize that national banks and federally regulated thrift organizations are subject to state laws governing debt collection. (See Bank of America v. City & County of San Francisco, supra, 309 F.3d at p. 559; Alkan v. Citimortgage, Inc. (N.D.Cal.2004) 336 F.Supp.2d 1061, 1064.) “ ‘[S]tates retain some power to regulate national banks in areas such as contracts, debt collection, acquisition and transfer of property, and taxation, zoning, criminal, and tort law.’ ” (Wells Fargo Bank N.A. v. Boutris (9th Cir.2005) 419 F.3d 949, 963, 970.) Appellants’ claims seeking relief under state contract, tort or debt collection are not preempted by federal law.)).