NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM KIVETT; et al., No. 21-15667

Plaintiffs-Appellees, D.C. No. 3:18-cv-05131-WHA

v.

MEMORANDUM*

FLAGSTAR BANK, FSB,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted April 14, 2022 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and BOLTON,** District Judge.

Flagstar Bank, FSB (“Flagstar”), a midsize federal savings bank operating in

all fifty states, appeals the district court’s order granting summary judgment to

William Kivett, Bernard Bravo, and Lisa Bravo. The three are representatives of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. former and current mortgagors to whom Flagstar never paid interest on escrow

(“IOE”), notwithstanding California Civil Code § 2954.8(a), which requires all

banks to pay 2% interest to borrowers on money held in escrow accounts. The district

court found that Lusnak v. Bank of America, N.A., 883 F.3d 1185 (9th Cir. 2018),

foreclosed Flagstar’s argument that the National Bank Act (“NBA”) preempted

§ 2954.8(a) and granted summary judgment to the classes without making any

factual findings as to the impact of § 2954.8(a) on Flagstar’s banking operations. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. “Questions of statutory interpretation are reviewed de novo . . . as are

questions of preemption.” Lopez v. Wash. Mut. Bank, F.A., 302 F.3d 900, 903 (9th

Cir. 2002), as amended, 311 F.3d 928 (9th Cir. 2002) (internal citations omitted).

Summary judgment is also reviewed de novo. Devereaux v. Abbey, 263 F.3d 1070,

1074 (9th Cir. 2001) (en banc). Viewing the evidence in the light most favorable to

the nonmovant, we must determine whether there are any genuine issues of material

fact and whether the district court correctly applied the relevant substantive law. See

id. (citation omitted).

In Lusnak, we reversed a district court’s holding that the NBA preempted

§ 2954.8(a). 883 F.3d at 1194–97. We found that the Dodd–Frank Wall Street

Reform and Consumer Protection Act (“Dodd–Frank”), which mandates that

national banks comply with applicable state IOE laws, “expresses Congress’s view

2 that [IOE] laws would not necessarily prevent or significantly interfere with a

national bank’s operations.” Id. at 1194–95. We therefore held that the NBA did not

preempt § 2954.8(a).

Here, the district court correctly concluded that, given our decision in Lusnak,

Flagstar could not succeed in arguing that § 2954.8(a) was preempted by the NBA.

Flagstar concedes that its banking operations in this case are regulated by the NBA,

which has regulated all federal savings banks since the passage of Dodd–Frank. See

id, 883 F.3d at 1196 & n.8 (reasoning that the OCC, regulator under the NBA, does

not enjoy field preemption over the regulation of national banks or federal savings

associations). Though Flagstar argues that Lusnak’s holding applies only to “large

corporate banks,” Lusnak’s language is unqualified: “no legal authority establishes

that state [IOE] laws prevent or significantly interfere with the exercise of national

bank powers, and Congress itself, in enacting Dodd–Frank, has indicated that they

do not. Accordingly, we hold that the NBA does not preempt California Civil Code

§ 2954.8(a).” Id. at 1197.

Flagstar’s argument that Lusnak’s procedural posture limits its authority in

this case is similarly unavailing. Arguing that the instant appeal of summary

judgment should not be controlled by a decision reversing a motion to dismiss,

Flagstar ignores our practice of deciding questions of preemption whenever they

may arise in litigation, including on motions to dismiss. See, e.g., McShannock v. JP

3 Morgan Chase Bank N.A., 976 F.3d 881, 895 (9th Cir. 2020) (reversing denial of

motion to dismiss on basis that the Home Owners’ Loan Act of 1933 preempted state

law); Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712, 716–18, 730 (9th Cir.

2012) (vacating permanent injunction after bench trial on basis that the NBA

preempted state law); Rose v. Chase Bank USA, N.A., 513 F.3d 1032, 1035–38 (9th

Cir. 2008) (affirming judgment on the pleadings on basis that the NBA preempted

state law); Polich v. Burlington N., Inc., 114 F.3d 122, 124 (9th Cir. 1997) (per

curiam) (affirming summary judgment on basis that the Interstate Commerce Act

preempted state law). Relatedly, Flagstar argues that Dodd–Frank mandated

preemption determinations be “case-by-case” and based on “substantial evidence.”

But as the Lusnak court reasoned, “[t]hese [regulations] have no bearing here where

the preemption determination is made by this court and not the OCC.” 883 F.3d at

1194; see also 12 U.S.C. § 25b(b)(1)(B). No factual review of Flagstar’s record on

summary judgment was necessary to determine whether § 2954.8(a) prevented or

significantly interfered with Flagstar’s banking operations, and the district court did

not err in declining to conduct such review.

Flagstar and amici Mortgage Bankers Association and American Bankers

Association alternatively ask us to overrule Lusnak as wrongly decided. A three-

judge panel may only depart from an earlier panel’s decision if it is “clearly

irreconcilable with the reasoning or theory of intervening higher authority[.]” Miller

4 v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Considering neither the

Supreme Court nor the Ninth Circuit sitting en banc has heard a case that could bring

Lusnak’s holding into question, we reject Flagstar and amici’s invitation to overturn

Lusnak.

2. Flagstar also argued that the district court incorrectly tolled the statute

of limitations and accordingly misstated the award. Appellees concede this point and

all parties agree that, pursuant to 28 U.S.C. § 2106, we should modify the final class

certification order and judgment. The Court will therefore remand for modification

of these two points.

The district court’s preemption holding is AFFIRMED. The judgment

and class certification order are VACATED and REMANDED to modify the

judgment amount from $9,262,769.24 to $9,180,580.15 and the class definition

date from April 18, 2018, to August 22, 2018.

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