Becker et al v. Wells Fargo Bank, NA, Inc. et al

Filing 82

ORDER signed by Judge Lawrence K. Karlton on 10/26/11 re hearing on 59 Motion for Reconsideration. The parties shall provide further briefing on the proper preemption standard application in this case. Notwithstanding any briefing schedule contained in the 81 Minute Order arising from this hearing, defendants' brief is due 11/9/11; and plaintiff's brief is due 11/23/11. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY R. BECKER, THE
BECKER TRUST DATED
MARCH 25, 1991,

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NO. CIV. S-10-2799 LKK/KJN
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Plaintiffs,
v.
O R D E R

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WELLS FARGO BANK, N.A.,
WACHOVIA MORTGAGE
CORPORATION; DOES 1-20,

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Defendants.
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/
Plaintiff’s motion for reconsideration came on for hearing on

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October 24, 2011.

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national banking association, and Wachovia Mortgage Corporation,

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which is, or was, regulated as a national banking association. See

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Watters v. Wachovia Bank, N.A., 550 U.S. 1, 6 (2007) (describing

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the regulatory status of Wachovia Mortgage Corporation as a wholly

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owned subsidiary of the former Wachovia Bank, N.A.).

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apparent

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associations, the parties have analyzed the preemption issues under

status

Plaintiff has sued Wells Fargo Bank, N.A., a

of

both

defendants

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as

Despite the

national

banking

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the Home Owners’ Loan Act (“HOLA”), 12 U.S.C. §§ 1461, et seq.,

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which applies only to federal savings associations.1 See 12 C.F.R.

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§ 560.2(a) (pursuant to HOLA, “federal savings associations may

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extend credit as authorized under federal law ... without regard

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to state laws purporting to regulate or otherwise affect their

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credit activities”) (emphasis added).

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The complaint does not allege any wrongful conduct on the part

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of “World Savings” bank, the only federal savings association

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mentioned in the complaint.2

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Accordingly,

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1.

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preemption standard applicable in this case.
2.

Notwithstanding any briefing schedule contained in the

Minute Order arising from this hearing,

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The parties shall provide further briefing on the proper

a.

Defendants’ brief is due no later than November 9,

2011; and

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The court is aware that the banking laws were amended in
July 2010, and apparently eliminated or reduced the difference in
preemption standards applicable to the two types of banks. See
“Dodd-Frank Wall Street Reform and Consumer Protection Act,” Pub.
L. No. 111-203, 124 Stat. 1376 (2010). However, the amending law
appears not be retroactive in effect. See Copeland-Turner v. Wells
Fargo Bank, N.A., ___ F. Supp.2d ___, 2011 WL 2650853 (D. Or. July
6, 2011) (discussing the Act at length).
Accordingly, the
amendments do not affect this case.

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World Savings Bank is the alleged originator of the loans.
Defendant mentions “Wachovia Mortgage, FSB,” a federal savings
bank, in the Notice of Removal. However, there appear to be no
allegations leveled against this entity in the complaint.
The
court also notes that there is no allegation that this entity is
related to defendant Wachovia Mortgage Corporation, which as noted
above, appears to be or to have been a wholly owned national
banking association subsidiary.
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b.

Plaintiff’s brief, if any, is due no later than

November 23, 2011.

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IT IS SO ORDERED.

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DATED:

October 26, 2011.

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