Eduardo Larin v. Bank of America, N.A.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 05 2012

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

EDUARDO LARIN, on behalf of himself No. 10-56276 and all others similarly situated, D.C. No. 3:09-cv-01062-DMS- Plaintiff - Appellant, JMA

v.

MEMORANDUM *

BANK OF AMERICA, N.A.,

Defendant - Appellee.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Argued and Submitted February 7, 2012 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Eduardo Larin sues on behalf of a putative nationwide class of consumers who

incurred certain expenses while enrolled in Banµ of America's Overdraft Protection

(ODP) program. The district court dismissed the action on the basis that Larin's state-

law claims were preempted by the National Banµ Act and regulations promulgated

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. thereunder. Exercising jurisdiction under 28 U.S.C. y 1291, we…

dissenting:

I respectfully dissent. I disagree with the majority’s characterization of Larin’s claims and would affirm the district court. In my view, the underlying conduct Larin alleges to support his state law claims is that the Bank’s practice of making deposited funds immediately available to ODP customers, without placing a hold on a larger or suspicious deposit, increases the ODP customers’ risk of fees.

National banks may exercise their “deposit-taking powers without regard to state law limitations concerning: ... (ii) Checking accounts; (iii) Disclosure requirements; [and] (iv) Funds availability[.]” 12 C.F.R. § 7.4007 (b)(2)(ii)-(iv). Larin contends that the state laws at issue in this case are laws of “general applicability” regulating deceptive and unfair business practices, and are therefore outside the ambit of preemption under Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 555 (9th Cir.2010). However, in Martinez , this Court held that claims under California’s Unfair Competition Law were preempted even though the plaintiffs claims alleged deception because the bank’s “underlying conduct” fell within the categorical preemption subsection of the NBA. Id.…

MEMORANDUM *

Eduardo Larin sues on behalf of a putative nationwide class of consumers who incurred certain expenses while enrolled in Bank of America’s Overdraft Protection (ODP) program. The district court dismissed the action on the basis that Larin’s state law claims were preempted by the National Bank Act and regulations promulgated thereunder. Exercising jurisdiction under 28 U.S.C. § 1291 , we reverse the judgment as to preemption and remand to the district court.

“State laws of general application, which merely require all businesses (including national banks) to refrain from fraudulent, unfair, or illegal behavior, do not necessarily impair a bank’s ability to exercise its [federally regulated] powers.” Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 555 (9th Cir.2010) (emphasis added). We must determine, however, whether Larin’s claims — no matter how they are labeled — would as a practical matter impose on the Bank’s operations “limitations concerning ... [c]hecking accounts[,] ... [disclosure requirements^ or] ... [fjunds availability,” so as to render them expressly preempted. 12 C.F.R. § 7.4007 (b)(2)(ii-iv); see Rose v. Chase Bank USA, NA, 513 F.3d 1032,…