Penner v. Chase Bank USA Na , 457 F. App'x 693 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             NOV 04 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    LISA PENNER, on behalf of herself and            No. 06-35726
    all others similarly situated; et al.,
    D.C. No. CV-06-05092-FDB
    Plaintiffs - Appellants,
    v.                                        MEMORANDUM *
    CHASE BANK USA NA and BANK
    ONE DELAWARE NA,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Western District of Washington
    Franklin D. Burgess, District Judge, Presiding
    Argued and Submitted February 4, 2009
    Submission Withdrawn February 10, 2009
    Resubmitted September 16, 2011
    Seattle, Washington
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Before: B. FLETCHER, REINHARDT and FISHER, Circuit Judges.* *
    Plaintiffs sued Chase Bank for its practice of increasing cardholders’ interest
    rates upon default or delinquency and retroactively applying the increased rates to
    the beginning of the latest payment cycle.
    1.     As plaintiffs concede, their Truth in Lending Act and breach of
    contract claims have been foreclosed by the Supreme Court’s decision in Chase
    Bank USA, N.A. v. McCoy, 
    131 S. Ct. 871
    (2011).
    2.     Plaintiffs’ declaratory relief, unconscionability and illegal penalty
    claims are foreclosed because Delaware law permits Chase’s practices. See McCoy
    v. Chase Manhattan Bank, USA, Nat. Assoc., 
    654 F.3d 971
    , 975 (9th Cir. 2011).
    3.     Plaintiffs fail to state a claim under the Washington Consumer
    Protection Act (WCPA), Wash. Rev. Code § 19.86.020. To succeed under the
    WCPA, plaintiffs must show that Chase’s actions had “the capacity to deceive a
    substantial portion of the public.” Hangman Ridge Training Stables, Inc. v. Safeco
    Title Ins. Co., 
    719 P.2d 531
    , 535 (Wash. 1986) (emphasis omitted). Here,
    however, “Chase openly and expressly notifies cardholders of the actions it
    reserves the right to take in the event of a default.” 
    McCoy, 654 F.3d at 975
    .
    **
    Following the death of Judge Pamela A. Rymer, Judge Stephen Reinhardt
    was drawn as her replacement on the panel.
    2
    The parties’ October 6, 2008 and October 20, 2008 motions for judicial
    notice are denied.
    AFFIRMED.
    3
    

Document Info

Docket Number: 06-35726

Citation Numbers: 457 F. App'x 693

Judges: Fisher, Fletcher, Reinhardt

Filed Date: 11/4/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023