                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 22 2013

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TYRONE L. ROBINSON,                               No. 11-57194

              Plaintiff - Appellant,              D.C. No. 2:11-cv-03939-GHK-
                                                  JEM
  v.

BANK OF AMERICA, NA                               MEMORANDUM *

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                         Argued and Submitted May 7, 2013
                               Pasadena, California

Before: WARDLAW and MURGUIA, Circuit Judges, and RESTANI, Judge.**

       Tyrone Robinson (“Robinson”) sued Bank of America (“BoA”) on behalf of

a putative class for fraud and unfair/deceptive trade practices related to fees

charged pursuant to BoA’s CashPay card program. Robinson claims that BoA



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
improperly failed to disclose that the $1.50/month service charge that CashPay

customers agreed to pay for the account could be avoided by withdrawing all funds

from the account each month, prior to assessment of the fee. Robinson based his

claims on violations of the California Consumers Legal Remedies Act (Cal. Civ.

Code § 1770(a)), California Unfair Competition Law (Cal. Bus. & Prof. Code

§ 17200, et seq.), and fraud by omission statute (Cal. Civ. Code § 1710). The

district court granted BoA’s Rule 12(c) motion for judgment on the pleadings and

dismissed Robinson’s complaint, reasoning that his claims were preempted by the

National Bank Act (“NBA”), 12 U.S.C. § 24 (2006). We affirm.

      The NBA permits national banks to “exercise . . . all such incidental powers

as shall be necessary to carry on the business of banking.” Id. These incidental

powers are expounded upon by regulations of the Office of the Comptroller of the

Currency (“OCC”). See, e.g., NationsBank of N.C., N.A. v. Variable Annuity Life

Ins. Co, 513 U.S. 251, 256–58 (1995) (providing for Chevron deference). “[T]he

usual presumption against federal preemption of state law is inapplicable to federal

banking regulation.” Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949, 956 (9th

Cir. 2005). A state law is preempted where it “stand[s] as an obstacle to the

accomplishment” of one of the purposes of the NBA or “prevent[s] or significantly

interfere[s] with the national bank’s exercise of its powers.” Barnett Bank of



                                          2
Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 31, 33 (1996).

      The OCC has incorporated this preemption standard into its regulations.

Under 12 C.F.R. § 7.4007(b)(3) (2012), “[a] national bank may exercise its

deposit-taking powers without regard to state law limitations concerning . . .

[d]isclosure requirements.” The same regulation provides that state tort laws “are

not inconsistent with the deposit-taking powers of national banks and apply to

national banks to the extent consistent with the decision of the Supreme Court in

Barnett Bank of Marion County, N.A.” Id. § 7.4007(c)(2).

      Applying Barnett Bank of Marion County, N.A., we have explained that

“[s]tate laws of general application, which merely require all businesses (including

national banks) to refrain from fraudulent, unfair, or illegal behavior, do not

necessarily impair a bank’s ability to exercise its real estate lending powers.”

Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 555 (9th Cir. 2010)

(emphasis added). Further, in Gutierrez v. Wells Fargo Bank, NA, we recently

held that even if a state may prohibit fraudulent affirmative misrepresentations, a

“requirement to make particular disclosures falls squarely within the purview of

federal banking regulation and is expressly preempted.” 704 F.3d 712, 726 (9th

Cir. 2012).

      Robinson’s underlying claims, although theoretically based on laws of



                                           3
general applicability, do not rest upon any affirmative misrepresentation by BoA,

despite Robinson’s arguments to the contrary. In fact, Robinson acknowledges

that he read the terms and conditions provided by BoA, and BoA enforced those

provisions, as written, against Robinson and charged him the disclosed monthly

service fee. Robinson’s only contention is that BoA was required to disclose not

only the fee it would charge, but also its collection policy, including its decision to

waive its collection rights against certain delinquent account holders whose

remaining funds could not cover the fee. Robinson unsuccessfully attempts to hide

from the obvious conclusion that he is attempting to use California law to impose a

specific disclosure obligation on BoA whenever it discloses any fee. Gutierrez,

however, forecloses Robinson’s argument that under the OCC regulations, no law

of general applicability concerning “Torts” can ever be preempted. Id.

Accordingly, we agree with the district court that Robinson’s state law claims are

preempted.

      AFFIRMED.




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