Cremaldi et al v. Wells Fargo Bank, N.A.

Filing 37

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bartlett, Timothy)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

COSMO N. CREMALDI and

CATHERINE L. CREMALDI,

Plaintiffs

v.

Civ. No. 13-11767-MLW

WELLS FARGO HOME MORTGAGE,
Defendant.
MEMORANDUM AND ORDER
WOLF, D.J.

November 2, 2015

On March 31, 2015, the court issued a Memorandum and Order
denying

defendant

Wells

Motion to Dismiss.

Fargo

Home Mortgage's

Fargo")

In its Motion to Dismiss, the defendant argued

that the plaintiffs'

claims were preempted by the Home Owners'

Loan Act ("HOLA"), 12 U.S.C. §1461, et
regulations.

("Wells

~,

and its implementing

The court concluded that HOLA preemption did not

apply to the. plaintiffs' claims because the alleged misconduct by
Wells Fargo is not, and never was, regulated by HOLA.
found that the proper preemption analysis was
National

Bank

Act

("NBA"),

implementing regulations.
not

preempt

12

§21,

et

governed by the
seq.,

and

its

The court concluded that the NBA did

the plaintiffs'

Motion to Dismiss.

U.S.C.

The court

claims

The case was

and denied

the

defendant's

referred to Magistrate Judge

Jennifer Boal for further proceedings.
On

May

15,

Reconsideration.

2015,

Wells

Fargo

filed

a

Motion

for

It argues that the court erred in applying NBA

preemption instead of HOLA preemption.

It urges

the court to

reconsider its prior ruling and find that the plaintiffs' claims
are preempted by HOLA.
The Motion for Reconsideration is being denied.

Even if HOLA

governs Wells Fargo's conduct in servicing the plaintiffs' loans,
the court finds that the plaintiffs'
NBA

preemption

preemption.

is

although

not

identical"

to

HOLA

March 31, 2015 Mem. and Order at 30 (quoting Dixon v.

Wells Fargo Bank,
2011)).

"similar,

claims are not preempted.

N.A.,

798 F.

Supp.

2d 336,

353 n.7

(D.

Mass.

The main cases relied on by the court in performing the

NBA preemption analysis were cases applying HOLA preemption.
id.

at 31-33

(citing Wigod v.

Wells Fargo Bank,

N.A.,

See

673 F.3d

547, 578 (7th Cir. 2012); In re Ocwen Loan Servicing, LLC Mortg.
Servicing Lit.,

491 F.3d 639,

644-46

(7th Cir.

2011)).

Having

independently considered the issue, the court finds that, even if
HOLA preemption applies, the plaintiffs' claims are not preempted.
In view of the foregoing, it is hereby ORDERED that:
1.

The defendant's Motion for Reconsideration

(Docket No.

28) is DENIED.
2.

The defendants' Motion for Leave to File Reply Brief to

Plaintiff's Opposition to Defendant's Motion for Reconsideration
(Docket No. 32) is MOOT.
3.
to

First

The defendant's Motion to State Deadline to File Answer
Amended

Complaint

(Docket
2

No.

31)

is

ALLOWED.

The

Magistrate Judge shall establish a date for the Answer to be filed
in connection with addressing other pretrial matters as previously
ordered.

UNITED STATES DISTRICT JUD

3