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Pre-emption

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District Court (Cal.) Finds No Conflict Pre-emption Between NBA and California’s Post-Repossession NOI Statute; Finds that NOI Violated State Law Because It Failed To Give Notice of “All” Conditions Precedent to Reinstatement

by Scott J. Hyman |

In Aguayo v. U.S. Bank, 2016 WL 2609296, at *2-4 (S.D.Cal., 2016), Judge Whelan granted partial summary judgment to an NOI class action plaintiff who argued that US Bank's NOI violated state law.  First, Judge Whelan rejected US Bank's conflict preemption argument. On September 24, 2009, this Court granted U.S. Bank's motion to dismiss the case based on the finding… Read More

District Court (Cal.) Says No HEA Pre-emption for FDCPA Claims, But Rosenthal Act Claims Were Preempted

by Scott J. Hyman |

In Wheeler v. Premiere Credit of North America, LLC, 2015 WL 222459, at *1-2 (S.D.Cal.,2015), Judge Curiel found that the HEA did not preempt the FDCPA, but did preempt the Rosenthal Act -- as to the claims pleaded.  The facts were as follows. Defendant is an accounts receivable contractor authorized to perform collection activities on defaulted student loans on behalf… Read More

9th Cir. Says NEA Pre-empts Some Student Loan Debt Servicing Issues

by Scott J. Hyman |

In Chae v. SLM Corporation, 593 F.3d 936 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Circuit held that the federal Higher Education Act preempts student borrowers'  claims that Sallie Mae, Inc.'s interest rates, late fees, and payment schedules violate California law. In conclusion, the Plaintiffs’ allegations that Sallie Mae makes fraudulent misrepresentations in its billing statements and coupon books are… Read More

9th Cir. Refuses to Enforce Arb. Clause in Post-Concepcion/Post-Trial Scenario; Finds Partial Pre-emption of UCL Claim related to Bank Overdraft Charges

by Scott J. Hyman |

In Gutierrez v. Wells Fargo Bank, NA --- F.3d ----, 2012 WL 6684748 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit rejected a post-trial petition to enforce arbitration, and found partial pre-emption of the UCL to the extent it conflicted with the business of banking in how a bank applies and computes overdraft fees.  The Court of Appeals… Read More

4th Cir. Finds No NBA Pre-emption of State Law Car RISC Disclosure Obligations Related to Debt Cancellation Agreements

by Scott J. Hyman |

In Decohen v. Capital One, N.A. --- F.3d ----, 2012 WL 6685767 (4th Cir. 2012), the Fourth Circuit Court of Appeals found no NBA/OCC pre-emption of Maryland's debt cancellation agreement laws as related to an automobile RISC where the National Bank was an assignee as opposed to the original lender.   But, the Court of Appeals went farther, too, find no… Read More

District Court (Fla.) Holds NBA Does Not Pre-Empt State’s Fair Debt Collection Law

by Scott J. Hyman |

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… Read More