Powell v. Huntington Nat'l Bank

Decision Date28 December 2016
Docket NumberCIVIL ACTION NO. 2:13–cv–32179
Citation226 F.Supp.3d 625
CourtU.S. District Court — Southern District of West Virginia
Parties Jeremy A. POWELL, et al., Plaintiffs, v. The HUNTINGTON NATIONAL BANK, Defendant.

John W. Barrett, Jonathan R. Marshall, Michael B. Hissam, Bailey & Glasser, Charleston, WV, Patricia M. Kipnis, Bailey & Glasser, Cherry Hill, NJ, Scott G. Stapleton, Stapleton Law Office, Huntington, WV, for Plaintiffs.

Andrew James Soukup, Keith A. Noreika, Robert A. Long, Covington & Burling, Washington, DC, Jason E. Manning, John C. Lynch, Troutman Sanders, Virginia Beach, VA, Carrie Goodwin Fenwick, Goodwin & Goodwin, Charleston, WV, for Defendant.



Pending before the Court is Defendant Huntington National Bank's ("Huntington") Motion for Summary Judgment. (ECF No. 117.) For the reasons provided below, the Court GRANTS the motion.1


Plaintiffs Jeremy A. Powell and Tina M. Powell bring this action against Huntington, alleging causes of action arising out of a home loan that Plaintiffs acquired through the bank. (See ECF No. 1–1 at 4, ¶ 1.) Plaintiffs filed their Complaint in the Circuit Court of Kanawha County, West Virginia, on October 15, 2013. (Id. ) The Complaint alleges that this is a class action pursuant to West Virginia Rule of Civil Procedure 23 and that the matter is brought "on his [sic] own behalf and on behalf of a class of West Virginia consumers who have had unlawful late fees charged to their home loan accounts." (Id. at 5–6, ¶¶ 12–16.) According to the Complaint, Huntington illegally assessed late fees in violation of the terms of Plaintiffs' mortgage loan contract and in violation of the West Virginia Consumer Credit and Protection Act ("WVCCPA"), (see id. at 7–8, ¶¶ 17–22), and misrepresented the amount of a claim in violation of the WVCCPA. (See id. at 8, ¶¶ 23–24.) It is not in dispute that Huntington charged Plaintiffs multiple late fees. (See id. at 5, ¶¶ 8–11; ECF No. 118 at 4–5.)

Plaintiffs allege that Huntington "agreed to only charge Plaintiffs one late fee for each missed payment." (ECF No. 1–1 at 5, ¶ 7.) However, Plaintiffs state that "Huntington regularly assessed late fees for months in which a payment was timely made within the period stated in Plaintiffs' Note." (Id. ¶ 8.) Plaintiffs assert as an example that while they "made a full payment on October 8, 2012, within the contractual period set forth in [their] Note, Huntington assessed Plaintiffs a late fee on October 17, 2012," and that "on November 5, 2012, Plaintiffs made another full payment, which included a $15.00 late fee ... Nevertheless, on November 19, 2012, Huntington assessed Plaintiffs another late fee." (Id. ¶¶ 9–10.) Plaintiffs contend that "Huntington regularly and systematically assesse[d] late fees in this manner." (Id. ¶ 11.)

On December 13, 2013, Huntington timely removed the state case to this Court pursuant to 28 U.S.C. § 1441, and Huntington's answer to the Complaint was filed the same day. (ECF Nos. 1, 3.) This Court found that it has diversity jurisdiction over this case in its previous memorandum opinion issued September 26, 2014. (See ECF No. 57 at 12–13.) Huntington filed this Motion for Summary Judgment and memorandum in support of its motion on April 25, 2016. (ECF Nos. 117, 118.) In accordance with this Court's order amending the schedule on July 13, 2016, (ECF No. 129), Plaintiffs responded to Huntington's motion on August 3, 2016, (ECF No. 139), and Huntington filed a reply memorandum in support of its motion on August 24, 2016. (ECF No. 144.) The motion is fully briefed and ripe for adjudication.


Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If there exist factual issues that properly can be resolved only by a trier of fact because they may reasonably be determined in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also Pulliam Inv. Co., Inc. v. Cameo Props. , 810 F.2d 1282, 1286 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Celotex Corp. , 477 U.S. at 322–23, 106 S.Ct. 2548. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Id.

When determining whether there is an issue for trial, the Court must view all evidence in the light most favorable to the nonmoving party. Mellen v. Bunting , 327 F.3d 355, 363 (4th Cir. 2003). "[T]he issue of material fact required by Rule 56 [a] to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson , 477 U.S. at 248–49, 106 S.Ct. 2505. The nonmoving party may not rest on the pleadings alone and must show that specific material facts exist by offering more than a mere "scintilla of evidence" in support of his or her position. Id. at 252, 106 S.Ct. 2505. Summary judgment is also appropriate when the inquiry involves a pure question of law. Taft v. Vines , 70 F.3d 304, 316 (4th Cir. 1995), vacated en banc on different grounds , 83 F.3d 681 (4th Cir. 1996).


Huntington moves for summary judgment, arguing that for the alleged causes of action to be viable, "Plaintiffs must prove that Huntington was required, but failed, to apply Plaintiffs' October 2012 payment ‘first to current installments, then to delinquent installments.’ " (ECF No. 118 at 7) (quoting W. Va. Code § 46A–3–112(3) ). It is not disputed that Huntington is a national banking association organized under the National Bank Act ("NBA"). (See ECF No. 1–1 at 5, ¶ 3; ECF No. 3 at 1, ¶ 3.) Huntington claims that Plaintiffs' claims fail as a matter of law because the state law provision at issue, section 46A–3–112(3) of the WVCCPA, is preempted by the NBA. (See ECF No. 118 at 8.) Huntington attempts to prove this by arguing, first, that NBA § 85 preempts Plaintiffs' challenge to the late fees, (seeid. at 8–17), and, second, that the NBA and regulations issued by the Office of the Comptroller of the Currency ("OCC") preempt Plaintiffs' challenge to the way in which Huntington posts payments to borrowers' accounts. Each of these two counts is addressed below.

The United States Constitution's Supremacy Clause makes federal law "the supreme law of the land ... anything in the Constitution or laws of any State to the contrary notwithstanding." U.S. Const. art. VI, cl. 2. "As a result, federal statutes and regulations properly enacted and promulgated can nullify conflicting state or local actions." Coll. Loan Corp. v. SLM Corp. , 396 F.3d 588, 595 (4th Cir. 2005). Such state or local laws may be preempted under the Supremacy Clause in three ways—by express preemption, field preemption, or conflict preemption. See Watkins v. Wells Fargo Home Mortg. , 631 F.Supp.2d 776, 783 (S.D. W. Va. 2008) (citing Anderson v. Sara Lee Corp. , 508 F.3d 181, 191 (4th Cir. 2007) (internal citation omitted)). Express preemption occurs when "Congress expressly declares its intent to preempt state law." Pinney v. Nokia, Inc. , 402 F.3d 430, 453 (4th Cir. 2005). Field preemption takes place when "Congress ‘occupies the field’ regulating so pervasively that there is no room left for the states to supplement federal law." Watkins , 631 F.Supp.2d at 783 (citing Anderson , 508 F.3d at 191 (internal citation omitted)). Lastly, conflict preemption "occurs when state law actually conflicts with federal law." Anderson , 508 F.3d at 191.

The only type of preemption at issue in this case is conflict preemption. Express preemption and field preemption do not apply to the activities of national banks because the language of the NBA does not provide for express preemption, and the United States Supreme Court, the relevant federal regulations, and the OCC itself, "envision some role, even if a limited one, for state regulation of national banks." See, e.g. , Watkins , 631 F.Supp.2d at 784. "Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law." Hillsborough Cty. v. Automated Med. Labs., Inc. , 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). While a conflict between state and federal law does not need to be direct, a finding that two laws directly conflict indicates the need to engage in a conflict preemption analysis. See City of Charleston v. A Fisherman's Best, Inc. , 310 F.3d 155, 169 (4th Cir. 2002).

This Court determined in its memorandum opinion issued September 26, 2014, that Plaintiffs' claims were not completely preempted by the NBA. (See ECF No. 57 at 5–12.) Huntington argues in its motion that while the Court found Plaintiffs' claims not to be completely preempted for purposes of finding a basis for removal, the Court may still find that the same claims are not cognizable due to ordinary preemption. (See ECF No. 118 at 8–17.) As a matter of law, Huntington is correct. The linguistic resemblance between complete preemption and ordinary or conflict preemption does not signify a similarly close jurisprudential relationship. See Lontz v. Tharp , 413 F.3d 435, 440 (4th Cir. 2005) ; Richards v. Appalachian Power Co. , 836...

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