Brian O'DOnnell v. Bank of America, National Asso , 504 F. App'x 566 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 09 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRIAN O’DONNELL; MICHAEL No. 11-16351
VAN BELLEGHEM; PATRICIA VAN
BELLEGHEM, individually, and on D.C. No. 5:07-cv-04500-RMW
behalf of all others similarly situated,
Plaintiffs - Appellants, MEMORANDUM*
v.
BANK OF AMERICA, NATIONAL
ASSOCIATION, a.k.a. Bank of America,
N.A.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted December 5, 2012
San Francisco, California
Before: KOZINSKI, Chief Judge, HAWKINS and MURGUIA, Circuit
Judges.
*
This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36–3.
page 2
1. While we lost federal question jurisdiction when plaintiffs voluntarily
dismissed their Truth in Lending Act claim, they meet the requirements for
diversity jurisdiction. Their unopposed motion to perfect jurisdiction is therefore
granted. See 28 U.S.C. § 1653; Fidelity & Cas. Co. v. Reserve Ins. Co., 596 F.2d
914, 918 (9th Cir. 1979).
2. Nowhere in the mortgage agreement did Bank of America represent that
it would apply monthly payments to principal if borrowers paid an amount
insufficient to cover even the accrued interest. Plaintiffs have therefore failed to
state a breach of contract claim that’s plausible on its face. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009); see also Amparan v. Plaza Home Mortg., Inc., 678
F. Supp. 2d 961, 977 (N.D. Cal. 2008); Velazquez v. GMAC Mortg. Corp., 605 F.
Supp. 2d 1049, 1071 (C.D. Cal. 2008).
3. The fraud and unfair competition claims would force Bank of America to
make additional disclosures, and are thus expressly preempted by the regulation
that privileges national banks to make real estate loans “without regard to state law
limitations concerning” the terms of credit or required disclosures. See 12 C.F.R.
§ 34.4(a) (2007); see also Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S.
25, 33 (1996); Final Rule, 69 Fed. Reg. 1904, 1912 n.59 (Jan. 13, 2004). These
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claims don’t fall within the savings provision, see 12 C.F.R. § 34.4(b)(2), because
they would more than “incidentally affect” the exercise of Bank of America’s real
estate lending powers.
4. The district court rightly dismissed the unfair competition claim premised
on Bank of America’s alleged violation of the Federal Trade Commission Act.
The federal statute doesn’t create a private right of action, see Carlson v. Coca-
Cola Co., 483 F.2d 279, 280 (9th Cir. 1973), and plaintiffs can’t use California law
to engineer one, see Lucia v. Wells Fargo Bank, N.A., 798 F. Supp. 2d 1059, 1072
(N.D. Cal. 2011); Summit Tech., Inc. v. High-Line Med. Instruments Co., 922 F.
Supp. 299, 316 (C.D. Cal. 1996).
5. Because plaintiffs haven’t shown that the Office of the Comptroller of the
Currency (1) acted outside the bounds of its statutory authority to regulate national
banks or (2) made a choice that was arbitrary or unreasonable, their claim that the
preemption regulation has “no legal effect” lacks merit. See Fid. Fed. Sav. & Loan
Ass’n v. De la Cuesta, 458 U.S. 141, 153–54 (1982); Wells Fargo Bank N.A. v.
Boutris, 419 F.3d 949, 960 n.14 (9th Cir. 2005).
AFFIRMED.