In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws. Judge Voorhees concluded that there was no pre-emption. The facts were as follows:
Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America, through its debt-collection efforts, has violated various provisions of the North Carolina Debt Collection Act (“NCDCA”), N.C. Gen.Stat. § 75–50 et seq., as well as the Telephone Consumer Protection Act (“TCPA”), 42 U.S.C. § 227. . . Plaintiff, a “consumer” within the meaning of N.C. Gen.Stat. § 75–50(1) as a natural person who has “incurred a debt or alleged debt for personal, family, household or agricultural purposes,” alleges that Defendant, a “debt collector” as defined by N.C. Gen.Stat. § 75–50(3), has contacted or attempted to contact her in an unlawful manner in order to collect a mortgage debt that Defendant was not obligated to pay. In April 2011, Plaintiff filed for bankruptcy protection and included Bank of America as a creditor to be discharged. Bank of America’s debt was not discharged until July 2011, yet on or about April 5, 2011, the U.S. Bankruptcy Court for the Western District of North Carolina sent a notice to Bank of America, advising it that Plaintiff had filed for bankruptcy and that “any further at-tempts to collect a debt from the Plaintiff were strictly prohibited.”Defendant thereafter continued to call Plaintiff’s cellular phone in an attempt to collect the alleged debt. (Doc. 1–1 at 6.) On July 11 and 12, 2011, Plain-tiff’s counsel sent letters to Defendant, warning that its attempts to collect Mrs. Sacco’s debt were “in vio-lation of the law and that Mrs. Sacco would act to enforce her rights….” Despite Plain-tiff’s correspondence, Defendant continued in its ef-forts to collect the debt, even after it had knowledge or reason to know that Plaintiff had filed bankruptcy, that the debt was discharged, and that Plaintiff was represented by counsel. Plaintiff alleges that Defendant called her cellular phone at least 197 times between April 4, 2011, and November 29, 2011, and more than fifty times between November 29, 2011, and January 23, 2012. In placing these calls, Defendant allegedly used an automatic telephone dialing system or a prerecorded or artificial voice. Plaintiff further alleges that, in making the calls, De-fendant failed to alert her that it was a debt collector, in violation of N.C. Gen.Stat. § 75–54(2). Plaintiff has characterized such behavior as conduct, the natural consequence of which is to har-ass, to oppress, or to abuse Plaintiff by causing her phone to ring excessively. Plaintiff asserts that she did not expressly consent to the phone calls and that she, on multiple occasions, told Defendant that she had filed bank-ruptcy and no longer owed a debt. She conveyed the name of her attorney and her bank-ruptcy case number, and told Defendant to stop call-ing her. Due to Defendant’s contin-ued calls to Plaintiff’s cellular phone after this com-munication, Plaintiff contends that Defendant willfully or knowingly violated the TCPA, which prohib-its the use of any automatic telephone dialing system or an artificial or prerecorded voice for non-emergency reasons. As a result of these phone calls, Plaintiff claims that she suffered injury in the form of emotional dis-tress, humiliation, embarrassment, and mental an-guish. As such, Plaintiff requests fair and reasonable compensatory damages for the emo-tional distress, aggravation, annoyance, and incon-venience that she suffered as a result of Defendant’s allegedly unlawful acts. Plaintiff further requests actual, statutory, and punitive dam-ages, attorney’s fees, and other expenses.
Judge Voorhees found no pre-emption of state fair debt collection laws, concluding:
In what remains a lodestar of the Court’s jurisprudence regarding the preemption of state laws affecting national banks, the Court in Nat’l Bank v. Commonwealth, 76 U.S. 353, 362 (1869), described a national bank’s right to collect debts as based in state law and noted that “[i]t is only when the State law incapacitates the banks from discharging their duties to the government that [the state law] becomes un-constitutional.” This sentiment was renewed in Bar-nett Bank, in which the Court held that nondiscrimi-natory laws of general application that do not “forbid,” “impair significantly,” “prevent,” or “significantly interfere” with a national bank’s exercise of its powers should not be pre-empted. 517 U.S. at 33. *9 In the instant case, the NCDCA does not pro-hibit or significantly impair Defendant from collecting its debts; it merely restricts debt collectors from engaging in “abusive” collection practices. The statute’s prohibitions against such practices are not in direct conflict with federal law as there is no such law that permits them. Additionally, the statute does not stand as an obstacle to the purposes and objec-tives of Congress in enacting the NBA and safe-guarding Defendant’s ability to make and to collect upon pertinent loans. Defendant may still make loans and collect debts, but like every debt collector in North Carolina, it must abide by the mandates of NCDCA and refrain from engaging in certain collec-tion practices. Therefore, the NCDCA is not pre-empted by the NBA or any OCC regulation.
Judge Voorhees also found that the Plaintiff had adequately pleaded a TCPA claim:
Regardless of whether this FCC interpretation of the TCPA is entitled to Chevron deference, see Mead, 533 U.S. at 226–27 (holding that an administrative interpretation “qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority”); see generally Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (holding that, because the FCC is authorized to promulgate binding legal rules and it “issued the or-der under review in the exercise of that authority,” its interpretation of the Communications Act was enti-tled to Chevron deference), this Court lacks jurisdic-tion to review its validity, 28 U.S.C. § 2342 (giving the federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of … all final orders of the Federal Communications Commission made re-viewable by section 402(a) of title 47”). Because the courts of appeals have been vested with exclusive jurisdiction to review the validity of FCC rulings, this Court will here accept as valid this FCC ruling, which is a “final order” for the purposes of 28 U.S.C. § 2342 because it was the agency’s final decision interpreting the “prior express consent” provision of the TCPA and determines legal rights and obligations. See Am. Trucking Ass’n, Inc. v. United States, 755 F.2d 1292, 1296 (7th Cir.1985) (deeming a “final agency action” under the APA to be analyti-cally equivalent to a “final order” under the Hobbs Act). However, because the pertinent allegations do not inform the Court as to how Defendant obtained Plaintiff’s cellular phone number and because Plain-tiff states in her Complaint that she told Defendant to stop calling her, the Court cannot, at this time, dis-miss Plaintiff’s TCPA claim. (See Doc. 1–1 at 7.)