                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-1995

Spellman v. Meridian Bank
Precedential or Non-Precedential:

Docket 94-3203




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Spellman v. Meridian Bank" (1995). 1995 Decisions. Paper 323.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/323


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                                FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT

             ___________

             No. 94-3203
             ___________


I. ORRIN SPELLMAN, on behalf of himself
   and all others similarly situated

                  v.

   MERIDIAN BANK (DELAWARE), and its
successor in interest Mellon Bank (DE);
         MELLON BANK, (DE) N.A.

                 I. Orrin Spellman, individually
                 and on behalf of the class of
           all
                 others similarly situated,
                                       Appellant


             ___________

             No. 94-3204
             ___________


            ERIC A. GOEHL

                  v.

           MELLON BANK (DE)

                 Eric A. Goehl, individually and
                 on behalf of the class of all
                 others similarly situated,
                                       Appellant




                  1
                   ___________

                   No. 94-3215
                   ___________


       VIRGINIA AMENT, individually and on
     behalf of all others similarly situated

                        v.

        PNC NATIONAL BANK, a national bank
                       (D.C. Civil No. 92-cv-244)


       SUZANNE CAPLAN, individually and on
     behalf of all others similarly situated

                        v.

              MELLON BANK (DE), N.A.
                       (D.C. Civil No. 92-cv-302)


SARA J. SZYDLIK; DONALD R. SZYDLIK, for themselves
  and on behalf of all others similarly situated

                        v.

              FIRST OMNI BANK, N.A.
                       (D.C. Civil No. 92-cv-330)


     BARBARA S. THOMPSON, individually and on
      behalf of all others similarly situated

                        v.

          MARYLAND BANK, a national bank
                        (D.C. Civil No. 92-cv-346)

                   Virginia Ament, Suzanne Caplan,
                   Sara J. Szydlik and Donald R. Szydlik,
                   and Barbara S. Thompson, individually
                   and on behalf of the respective
                   classes they represent of all others
                   similarly situated,
                                  Appellants




                        2
                  ___________

                  No. 94-3216
                  ___________


      DAVID A. TOMPKINS, individually and
   on behalf of all others similarly situated

                       v.

       AMERICAN GENERAL FINANCIAL CENTER
                      (D.C. Civil No. 92-cv-375)


      DONALD R. SZYDLIK, individually and
   on behalf of all others similarly situated

                       v.

      ASSOCIATES NATIONAL BANK (Delaware)
                      (D.C. Civil No. 92-cv-1025)

                David A. Tompkins and Donald R. Szydlik,
                individually and on behalf of the
                respective classes they represent of
                all others similarly situated,
                                          Appellants


                  ___________

                  No. 94-3217
                  ___________


      KATHLEEN A. DEFFNER, individually and
   on behalf of all others similarly situated

                       v.

CORESTATES BANK OF DELAWARE, N.A. a national bank
   and HOUSEHOLD BANK, a federal savings bank
                       (D.C. Civil No. 92-cv-0398)




                       3
         BARBARA BARTLAM, individually and
     on behalf of all others similarly situated

                          v.

BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
            a national banking association
                          (D.C. Civil No. 92-cv-1427)

                   Barbara Bartlam and Kathleen A. Deffner,
                   individually and on behalf of the
                   respective classes they represent of all
                   others similarly situated,
                                         Appellants


                     ___________

                     No. 94-3218
                     ___________


        DAVID A. TOMPKINS, individually and
     on behalf of all others similarly situated

                          v.

           THE CHASE MANHATTAN BANK (USA),
              a Delaware Chartered Bank

                         David A. Tompkins, individually
                         and on behalf of the class of all
                         others similarly situated,
                                               Appellant

   _______________________________________________

   On Appeal from the United States District Court
       for the Western District of Pennsylvania
    (D.C. Civil Action Nos. 93-cv-868, 93-cv-878,
     92-cv-244, 92-cv-302, 92-cv-330, 92-cv-346,
          92-cv-375, 92-cv-1025, 92-cv-398,
               92-cv-1427 & 92-cv-714)
                  ___________________


               Argued February 2, 1995

 Before:   SCIRICA, ROTH and SAROKIN, Circuit Judges



                          4
                       __________________

                   ORDER AMENDING SLIP OPINION
                       __________________



          IT IS HEREBY ORDERED that the dissent and concurrence

in the slip opinion in the above case, filed December 29, 1995,

be amended as follows:
          1. Page 47, last sentence. Change parenthetical
following the citation to Sherman v. Citibank (S.D.) N.A. to
read:

              (term "interest" as used in 12 U.S.C. § 85 does not
              include late payment fees and does not preempt
              application of state law).

          2. Page 47, last sentence. Change parenthetical
following the citation to Copeland v. MBNA America Bank, N.A. to
read:

              (term "interest" as used in 12 U.S.C. § 85 includes
              late payment fees and preempts application of state
              law)

          3. Page 48, footnote 2, second paragraph. Change
parenthetical following the citation to M. Nahas & Co. v. First
Nat'l Bank to read:

              (holding complete preemption applies to the usury
              provisions of the National Bank Act, 12 U.S.C. §§85
              & 86)

          4. Page 49, third paragraph, first sentence.   Change
the first sentence to read:

                Title 12, section 86, the National Bank Act's
              civil enforcement provision for recovery of
              excessive interest and impermissible loan fees
              charged by national banks, is the exclusive remedy
              for borrowers to enforce the terms of 12 U.S.C.
              §85.3

          5. Page 50, carryover paragraph, first line.   Change
the parenthetical to read:




                               5
              (noting the identity of language between the first
              part of § 521 of DIDA and 12 U.S.C. § 85)
          6. Page 50, first full paragraph, third sentence.
Change the sentence to read:

              Title 12, section 86 and § 521 of DIDA, govern
              recovery of impermissible loan fees from such
              banks.

          7. Page 51, third paragraph. Change parenthetical
following the citation to M. Nahas to read:

              (finding congressional intent for complete
              preemption based on Congress' creation of an
              exclusive federal remedy in 12 U.S.C. § 86)

          8. Page 52, footnote 5. Begin a new paragraph with
the sentence, "I understand the desire to interpret . . ."

          9. Page 53, second paragraph, second sentence.     Change
sentence to read:

              We could not expect the Congress which enacted the
              National Bank Act to have discussed the federal
              question jurisdiction or removal implications of 12
              U.S.C. §§ 85 & 86, since neither general federal
              question jurisdiction nor general removal power
              existed in 1864.8

          10. Page 57, last paragraph, first sentence. Rearrange
the first sentence to read:

                Against this backdrop, Congress enacted the
              provision on usury in section 30 of the National
              Bank Act of 1864, 12 U.S.C. §§ 85, 86.

          11. Page 58, second paragraph, first sentence.     Change
sentence to read:

                The Supreme Court has described Congress' intent
              in passing 12 U.S.C. §§ 85 & 86.

          12. Page 59, first full paragraph, first sentence.
Change sentence to read:

                Congressional intent can also be gleaned from
              the fact that 12 U.S.C. § 86 provides the
              exclusive remedy for usury claims against national
              banks.11



                               6
          13. Page 60, carryover paragraph, first sentence.
Change sentence to read:

               Further, the remedy for usury in 12 U.S.C. § 86,
               "preempts the field and leaves no room for varying
               state penalties."

          14. Page 61, first full paragraph, fourth sentence.
Change sentence to read:

               Section 521 of DIDA was specifically intended to
               have congruent scope with the National Bank Act
               with respect to the coverage of 12 U.S.C. § 85.

          15. Page 62, carryover paragraph. Change the
parenthetical following the citation to Copeland v. MBNA America,
N.A. to read:

               (finding no complete preemption in 12 U.S.C. §§ 85
               & 86)


                                BY THE COURT,


                                /s/ Anthony J. Scirica


                                          Circuit Judge

DATED: January 12, 1996




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