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Court finds that National Banking Act does not pre-empt state claims for debt collection violations

Thursday 26th July 2012

by mbavaro

Our foreclosure lawyers sue banks for debt collection violationsWe filed a lawsuit against Wells Fargo for attempting to collect the mortgage debt directly from our client by calling him after the bank had knowledge that we represented him.  Not only that, but we specifically revoked any authorization for Wells Fargo to contact our client on his cell phone.   Wells Fargo called anyway.  They violated the Florida Consumer Collection Practices Act by calling in the first place and they violated the Telephone Consumer Protection Act by placing a robo-call to the cell phone.  So, like we do to any bank that violates our clients’ consumer protection rights, we filed suit against Well Fargo.

My hat’s off to Well Fargo on this one.   They filed a Motion to Dismiss alleging that the National Banking Act pre-empts the state FCCPA claim.   They argued that because the federal government regulated banking through the National Banking Act that that pre-empts, or supersedes, any state claim relating to banking, including collecting past due mortgage payments.  It was a very creative argument.  If Wells Fargo was correct, it would eliminate a homeowner’s ability to sue in state court for debt collection violations. This would have huge implications nationwide.  However, the federal judge ruled that the while National Banking Act regulates banking, it does not pre-empt state debt collection laws.

As a side note, the court dismissed the TCPA claim because the court ruled we need to allege that the calls were made electronically.  So, we have already amended the complaint to include that allegation.

As I have said time and time again, lawsuits against the banks are key.  They violate consumers’ right every single day.  They have no problem suing homeowners for foreclosure, and more homeowners and foreclosure lawyers need to fight back.  We offer free consultations in Broward, Miami-Dade, and Palm Beach with our foreclosure and consumer protection attorneys.

Read the order here.

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