Many thanks to the blog reader who wrote to draw my attention to Parks v. MBNA America Bank, N.A., ___ Cal.App.4th ___ (May 12, 2010). In Parks, the Court of Appeal (Fourth Appellate District, Division Three) held that federal law did not preempt plaintiffs' UCL "unlawful" prong claim, which was predicated on alleged violations of Civil Code section 1748.9.
Interestingly, in so holding, the Court expressly declined to follow a contrary Ninth Circuit decision, Rose v. Chase Bank USA, N.A., 513 F.3d 1032 (9th Cir. 2008):
Although we are reluctant to create a split of authority with the Ninth Circuit Court of Appeals on a point of federal law, our understanding of the authorities discussed above requires us to do so. It is still possible MBNA may demonstrate that section 1748.9 imposes burdens on national banks that significantly impair the authority granted to it by the [National Bank Act]. But there is no basis for preempting section 1748.9 without a factual record.Slip op. at 19-20 (footnote omitted).
This opinion is particularly interesting because (1) it found that the state law banking statute (i.e., Civ. Code 1748.9) that was the predicate of the unlawful prong cause of action was not preempted by the NBA, and (2) it found that the OCC's preemption regulation was invalid, and that the OCC does not have plenary authority to determine the scope of preemption under the National Bank Act, and
Posted by: Michael R. Vachon, Esq. | Friday, May 14, 2010 at 03:42 PM