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
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