Stacy BARZELIS, individually and as Representative of the Estate of Nicholas Barzelis, Deceased, Plaintiff-Appellant v. FLAGSTAR BANK, F.S.B.; Unknown Parties, Defendants-Appellees.
No. 14-10782
United States Court of Appeals, Fifth Circuit
April 22, 2015
784 F.3d 971
Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
grant of summary judgment to Harris on the issue of Norfolk Southern‘s liability for the accident and remand to the district court for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Stacy BARZELIS, individually and as Representative of the Estate of Nicholas Barzelis, Deceased, Plaintiff-Appellant
v.
FLAGSTAR BANK, F.S.B.; Unknown Parties, Defendants-Appellees.
No. 14-10782.
United States Court of Appeals, Fifth Circuit.
April 22, 2015.
Kirsten Marisol Castaneda (argued), Calvin Don Clayton, Esq., Attorney, Jason Robert Marlin, Esq., Robert Thompson Mowrey, Locke Lord, L.L.P., Dallas, TX, for Defendants-Appellees.
Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Stacy Barzelis appeals the dismissal of her various state-law claims against Flagstar Bank, F.S.B. (“Flagstar“), as preempted under the Home Owners’ Loan Act of 1933 (“HOLA“), as well as a summary judgment on her claim under the Real Estate Settlement Procedures Act of 1974 (“RESPA“). Applying regulatory guidance from the Office of Thrift Supervision
I.
In 2007, Stacy Barzelis and her husband Nicholas Barzelis refinanced their home loan with Fairway Independent Mortgage Corporation. For the refinancing, they executed a Texas Home Equity Security Instrument (“Security Instrument“) granting the bank a security interest in the property, but only Nicholas signed the promissory note (“Note“). The loan was later assigned to Flagstar.
In October 2009, Nicholas died, and Stacy submitted the death certificate to Flagstar in March 2010. She then filed for Chapter 13 bankruptcy relief, and the trustee continued to send loan payments to Flagstar on her behalf. But the bank refused them, stating that it would accept payments only from Nicholas, who had signed the Note. Stacy then sent Flagstar two Qualified Written Request, Complaint, and Dispute of Debt and Validation of Debt letters (“QWR“), asking Flagstar for information about the status of the loan and why it was refusing her payments. Flagstar replied to the first letter, but only to say that it would not supply her with the requested information because she was not a borrower under the Note, and she needed to provide “letters of authority from a probate attorney” to show that she was acting as the agent of the estate.
Flagstar began foreclosure proceedings, then Barzelis sued in state court for wrongful foreclosure. Flagstar removed to federal court, and Barzelis amended her complaint to include an array of state and federal claims, including, in relevant part, breach of contract, negligent misrepresentation, violations of the Texas Debt Collection Act (“TDCA“), and violation of RESPA. The district court dismissed all the state-law claims as preempted by HOLA and granted summary judgment to Flagstar on the RESPA claim.
II.
We must decide which if any of Barzelis‘s state-law claims—breach of contract, negligent misrepresentation, and TDCA violations—are preempted by HOLA.1 We review issues of federal preemption de novo. Kaufman v. Allied Pilots Ass‘n, 274 F.3d 197, 200 (5th Cir. 2001). Enacted during the Great Depression, HOLA authorized the creation of federal savings associations (“FSAs“) to ease tight credit conditions for home borrowers. Fidelity Fed. Savs. & Loan Ass‘n v. de la Cuesta, 458 U.S. 141, 159, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982). The act gives OTS regulatory authority to promulgate national, uniform regulations, for FSAs, that occupy the field and preempt state law.
Under that authority, OTS set out the scope of HOLA preemption in a regulation,
At the first step, courts must look to Section 560.2(b), which lists thirteen categories of laws that are explicitly preempted by HOLA. Those categories concern particular ways in which a state might regulate FSA lending operations, such as laws requiring certain disclosures or regulating interest rates. If the state law fits within one of those categories, it is preempted as applied to FSAs, ending the inquiry. If it is not covered by Section 560.2(b) but nonetheless affects lending, there remains a presumption that it is preempted, and courts then look to the second step in Section 560.2(c).4 It specifies that state laws falling into certain categories5 are not presumed preempted if they “only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes” of Section 560.2(a).6 So, laws that have more than an incidental effect on lending and that are inconsistent with the regulation are also preempted, but the remaining state laws are not and may be applied to FSAs. Finally, where there is doubt, a law is deemed preempted. Lending and Investment, 61 Fed. Reg. at 50966-67.
A.
Barzelis‘s first claim is called breach of contract, but closer examination reveals that it is actually two claims: one based on provisions of the Security Instrument and another based on the Texas Property Code. First, Barzelis alleges that Flagstar violated particular paragraphs of the Security Instrument that provide substantive protections under the contract, such as the right to discontinue acceleration. But Barzelis also avers, in her breach-of-contract claim, that, independently of the Security Instrument, Flagstar violated
It is important to distinguish between breach-of-contract claims based on provisions of the agreement and those based on independent statutory obligations. It may be the case, for example, that a state law regulating interest-rate adjustments to protect borrowers is preempted by HOLA. But that does not prevent a bank and a borrower from voluntarily agreeing to substantially the same protections in their contract, and in that case, the bank may not later invoke HOLA preemption to stop the borrower from enforcing those terms. See In re Ocwen Loan Serv., LLC Mortg. Serv. Litig., 491 F.3d 638, 643-44 (7th Cir. 2007). By the same token, however, borrowers may not disguise state statutory violations as breach-of-contract claims to avoid preemption by relying on clauses stating that the agreement is subject to applicable law. In both situations, courts must look not to the label placed on the claim but to the substance of the allegation to determine
We first must examine whether
Likewise,
This analysis, however, does not implicate the breach-of-contract claims based on the parties’ voluntary agreement, and the entire claim should not have been dismissed when preemption affected only one of its underlying theories. So, though we conclude that
B.
Barzelis‘s second claim is for common-law negligent misrepresentation, but again, we examine its substance, not its title, to determine whether it is preempted. Claims for negligent misrepresentation deserve careful analysis because the preemption framework will sometimes depend on the particularities of the alleged misstatements. Barzelis asserts that in its mailed notices, Flagstar negligently misrepresented the status of her loan and the foreclosure sale, and the district court concluded that, because the claim is based on alleged misstatements in disclosures contained in credit-related documents, it is preempted under Section 520.6(b)(9). For this particular claim, we agree.
Negligent misrepresentation—like fraud, intentional misrepresentation, and similar tort claims—relies on a generally applicable duty not to misrepresent material facts, and to that extent, the claim would typically not be preempted by
C.
Third, Barzelis alleges that Flagstar violated four different provisions of the TDCA that prohibit various deceptive practices in the course of collecting a debt, including: threatening to take illegal action,10 attempting to collect unauthorized fees,11 mischaracterizing a debt,12 and using other deceptive means.13 Relying on three subsections of Section 560.2(b), the district court ruled that all four statutes are preempted under HOLA. But applying the two-step framework, we agree instead with the other courts of appeals that have considered similar consumer-protection statutes under HOLA preemption.
First, in regard to Section 560.2(b), none of the TDCA provisions at issue falls under the enumerated categories. The TDCA prohibits various types of deceptive and abusive practices in the course of debt collection, but it is not specifically targeted at federal savings associations or even banks, and many who are not lenders qualify as debt collectors under the statute. The laws do not regulate specific terms of lending, the extension of credit, types of fees allowed, or disbursements, which are included under Section 560.2(b). Moreover, OTS reached a similar conclusion in an opinion letter interpreting HOLA‘s preemptive effect on a different consumer-protection statute.14
Nevertheless, these TDCA claims do affect lending insofar as they limit the ways in which Flagstar can collect its loans. So there is a presumption of preemption, and we must move to the second step to determine whether the statutes have more than an incidental effect or are otherwise consistent with the purposes set out in Section 560.2(a). Although it is uncertain how to measure the impact of a state law on lending, we are informed by the reasoning in the OTS opinion letter and by other courts of appeals.
We agree with the consensus,15 concluding that similar state consumer-protection laws—those “that establish the basic norms that undergird commercial transactions”16—do not have more than an incidental effect on lending and thus escape
III.
Finally, and separately from the preemption issues, we consider the summary judgment on Barzelis‘s RESPA claim under
Nicholas died intestate well before the QWRs were sent. And though he was the only signatory on the Note when he was alive, it was signed during his marriage to Stacy and was secured by their homestead. Accordingly, the debt was presumptively a community debt.17 Similarly, the house was community property at the time of death.18 Therefore, upon Nicholas‘s death, the community estate, including the property, passed to Stacy subject to the community debt of the Note,19 and no administration was necessary for the community property under Texas law.20 Consequently, under Texas law, Stacy, as the survivor to her husband‘s interest in the property subject to their community debt, was the successor-debtor on the Note and was the legal borrower.21
Because the district court did not consider the legal implications of Texas‘s community-property system and estate laws as they relate to Barzelis‘s borrower status, we reverse the summary judgment on the RESPA claim. In doing so, we make no comment on other aspects of that claim, such as whether Barzelis met any requirement of establishing her status as borrow-
er
The judgment is AFFIRMED in part and REVERSED in part and REMANDED for further proceedings as needed. We place no limit on the matters that the court may address, nor do we suggest what rulings the court should make on remand.
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE