See also Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 556-57 (9th Cir. 2010) (dismissing state law claim against originator based on excessive underwriting fees, finding the claim preempted under 12 C.F.R. § 34.4(a)(10)); Acosta v. Wells Fargo Bank, N.A., No. 10-991, 2010 WL 2077209, at *8 (N.D. Cal. May 21, 2010) (finding claim against loan originator based on a state law regulating foreclosures was preempted due to 12 C.F.R. § 34.4(a)(10)). Even though the MOSLA provision is not expressly preempted by OCC regulation, it could still be preempted under the Supreme Court's Barnett Bank "significant interference" analysis.
"The extent of Federal regulation and supervision of Federal savings associations under the Home Owners' Loan Act is substantially the same as for national banks under the national banking laws, a fact that warrants similar conclusions about the applicability of state laws to the conduct of the federally authorized activities of both types of entities." Acosta v. Wells Fargo Bank, N.A., 2010 WL 2077209 *8 (internal citation omitted). Therefore, the Court concludes that Section 2923.5 is also preempted by the National Bank Act.
"The extent of Federal regulation and supervision of Federal savings associations under the Home Owners' Loan Act is substantially the same as for national banks under the national banking laws, a fact that warrants similar conclusions about the applicability of state laws to the conduct of the federally authorized activities of both types of entities." Acosta v. Wells Fargo Bank, N.A., 2010 WL 2077209 *8 (internal citation omitted). Therefore, the Court concludes that Section 2923.5 is also preempted by the National Bank Act.
It has no relation to any statutory duties which may exist." Smith v. City & County of San Francisco, 225 Cal. App. 3d 38, 49 (1990); see also Acosta v. Wells Fargo Bank, N.A., 2010 WL 2077209, at *5 (N.D. Cal. May 21, 2010) (rejecting argument that violation of California's wrongful foreclosure statutes demonstrated breach of the covenant implied in loan agreements). Therefore, the Court finds that Plaintiff's claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law and summary judgment is granted.
Smith v. City County of San Francisco, 225 Cal. App. 3d 38, 49 (1990). See also Acosta v. Wells Fargo Bank, N.A., No. 10-0991, 2010 WL 2077209, at *5 (N.D. Cal. May 21, 2010) (rejecting argument that violation of California's wrongful foreclosure statutes demonstrated breach of the covenant implied in loan agreements). Lawther's claim therefore must be dismissed as pleaded with leave to amend, to the extent he alleges a breach of the covenant of good faith implied in the alleged oral modification agreement.
May 13, 2013) 2013 U.S. Dist. LEXIS 68615, 8-9 [as "state law that attempts to regulate savings banks and their lending and servicing activities," § 2923.5 "is exactly the sort of statute that is proscribed by the HOLA"]; Pinales v. Quality Loan Serv. Corp. (S.D. Cal. Sept. 22, 2010) 2010 U.S. Dist. LEXIS 100079, 8-9 [requirements of section 2923.5 "fall squarely within" federal regulation preempting state laws dealing with '[p]rocessing, origination, servicing, sale or purchase of, or investment or participation in, mortgages' "]; Parcray v. Shea Mortg., Inc. (E.D. Cal., April 23, 2010) 2010 U.S. Dist. LEXIS 40377, 24 [HOLA preempts claim for violation of section 2923.5 because claim "concerns the processing and servicing of Plaintiffs' mortgage"]; Maynard v. Wells Fargo Bank, N.A. (S.D. Cal. Oct. 12, 2012) 2012 U.S. Dist. LEXIS 148163 [§ 2923.5 preempted by NBA, which regulates national banks in manner substantially the same as regulation of federal savings associations under HOLA]; Acosta v. Wells Fargo Bank, N.A. (N.D. Cal. May 21, 2010) 2010 U.S. Dist. LEXIS 50602, 25 [same]; Contra, Quintero v. Wells Fargo Bank, N.A. (N.D. Cal. Jan. 17, 2014) 2014 U.S. Dist. LEXIS 6807, 7, 11 [nonjudicial foreclosure procedures not preempted under HOLA]); Osorio v. Wells Fargo Bank, N.A. (N.D. Cal. May 24, 2012) 2012 U.S. Dist. LEXIS 72719, 6 [same]; Sannah v. Wells Fargo Bank, N.A. (C.D. Cal. March 19, 2012) 2012 U.S. Dist. LEXIS 189872, 15 [no preemption under NBA].)