Louisiana: Does not apply to Banks

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Louisiana: Does not apply to Banks

Postby Administrator » Wed Nov 12, 2014 3:50 pm

Louisiana Unfair Trade Practices Act, La. Rev. Stat. § 51:1401 et seq. (hereinafter, the "LUTPA") under
Fed. R. Civ. Proc. 12(b)(6), inasmuch as the LUTPA is inapplicable to Wells Fargo as a
federally insured and regulated national banking institution. See, e.g., Mariche v. Wells Fargo,
Civ. No. 11-1191, 2012 WL 1057626 at *2 (E.D. La. March 28, 2012) ("Because Wells Fargo is
a federally insured financial institution and is regulated as a nationally chartered bank by the
Office of the Comptroller of the Currency, it is exempt from application of the LUTPA.") (citing
Fitch v. Wells Fargo Bank, N.A., 709 F. Supp. 2d 510, 517 (E.D. La. 2010); Hayes v. Wells
Fargo Home Mortgage, Civ. No. 06-1791, 2006 WL 3193743 at *6 (E.D. La. Oct. 31, 2006)),
appeal dismissed, No. 12-30447 (5th Cir. July 3, 2012); see also, e.g., Caillet v. Regions Fin.
Corp., 282 F.R.D. 406, 413 (W.D. La. 2012) ("Regions is a federally insured financial institution
that is not subject to LUTPA."); Whittington v. Patriot Homes, Inc., Civ. No. 06-1068, 2008 WL
1736821 at *3 (W.D. La. April 11, 2008) (holding plaintiff failed to state a claim against Chase
Bank USA, N.A. under the LUTPA, inasmuch as Chase is a federally regulated and insured
financial institution).

Davis v. Wells Fargo Bank, Case 5:13-cv-02517-SMH-KLH, USDC W.D. La.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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Re: Louisiana: Does not apply to Banks

Postby Administrator » Wed Nov 12, 2014 3:51 pm

The purpose of the exemption created by § 51:1406(1) "is to avoid duplication and exclude financial institutions
which are regulated by other authorities as to unfair or deceptive trade practices." First Financial Bank, FSB v.
Butler, 492 So.2d 503, 506 (La. App. 5 Cir. 1986).
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Re: Louisiana: Does not apply to Banks

Postby Administrator » Wed Nov 12, 2014 3:53 pm

"Plaintiffs have no possible cause of action against Wells Fargo for unfair trade practices,
inasmuch as the Louisiana Unfair Trade Practices Act, La. Rev. Stat § 51:1401 et seq., expressly
exempts national banking associations such as Wells Fargo from liability thereunder. In
particular, the LUTPA expressly provides that it is inapplicable to "any federally insured
financial institution, its affiliates and subsidiaries," or to any other financial services provider
regulated by "federal banking regulators who possess authority to regulate unfair or deceptive
trade practices . . . ." La. Rev. Stat. § 51:1406(1).5 Wells Fargo is a federally insured financial
institution. More, as a nationally chartered bank, Wells Fargo is regulated by the Office of the
Comptroller of the Currency (the "OCC"). See 12 U.S.C. § 24(a); 12 C.F.R. §§ 5.34 & 5.39. As
such, Wells Fargo is exempt from application of the LUTPA under the explicit text of La. Rev.
Stat. § 51:1406(1). See Mariche v. Wells Fargo, Civ. No. 11-1191, 2012 WL 1057626 at *2
(E.D. La. March 28, 2012) ("Because Wells Fargo is a federally insured financial institution and
is regulated as a nationally chartered bank by the Office of the Comptroller of the Currency, it is
exempt from application of the LUTPA.") (citing Fitch v. Wells Fargo Bank, N.A., 709 F. Supp.
2d 510, 517 (E.D. La. 2010); Hayes v. Wells Fargo Home Mortgage, Civ. No. 06-1791, 2006
WL 3193743 at *6 (E.D. La. Oct. 31, 2006)), appeal dismissed, No. 12-30447 (5th Cir. July 3,
2012).
Consistent with the express provisions of the LUTPA, Louisiana state and federal courts
have routinely rejected attempts by plaintiffs to plead LUTPA claims against banking defendants
that qualify for exemption under La. Rev. Stat. § 51:1406(1). The same result should obtain
here, requiring that Plaintiffs' claims against Wells Fargo under the LUTPA be dismissed."

As argued by Wells Fargo Bank in its motion to dismiss.


Davis v. Wells Fargo Bank, Case 5:13-cv-02517-SMH-KLH, USDC W.D. La., Document 7-1
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Re: Louisiana: Does not apply to Banks

Postby Administrator » Wed Nov 12, 2014 3:54 pm

See, e.g., Mariche v. Wells Fargo, Civ. No. 11-1191, 2012 WL 1057626 at *2 (E D. La. March 28, 2012)
("Because Wells Fargo is a federally insured financial institution and is regulated as a nationally chartered bank by
the Office of the Comptroller of the Currency, it is exempt from application of the LUTPA.") (citing Fitch v. Wells
Fargo Bank, N.A., 709 F. Supp. 2d 510, 517 (E.D. La. 2010); Hayes v. Wells Fargo Home Mortgage, Civ. No.
06-1791, 2006 WL 3193743 (E.D. La. Oct. 31, 2006)), appeal dismissed, No. 12-30447 (5th Cir. July 3, 2012); see
also, e.g., Caillet v. Regions Fin. Corp., 282 F.R.D. 406, 413 (W.D. La. 2012) ("Regions is a federally insured
financial institution that is not subject to LUTPA."); Dupont v. Chase Home Finance, LLC, No. 10-1241, 2010 WL
2010 WL 3724237 at *2 (W.D. La. Sept. 16, 2010), (dismissing LUTPA claims against a mortgage lender upon
taking judicial notice of the fact that it was a subsidiary of JPMorgan Chase Bank N.A., a federally insured financial
institution based upon publicly available information); Whittington v. Patriot Homes, Inc., Civ. No. 06-1068, 2008
WL 1736821 at *3 (W.D. La. April 11, 2008) (holing plaintiff failed to state a claim against Chase Bank USA, N.A.
under the LUTPA, inasmuch as Chase is a federally regulated and insured financial institution); Bank One, N.A. v.
Colley, 294 F. Supp. 2d 864, 868 (M.D. La. 2003) (holding that national banking association chartered under the
authority of the United States is exempt from the LUTPA as a matter of law); First Fin. Bank, FSB v. Butler, 492
So. 2d 503, 506 (La. App. 5 Cir. 6/2/1986) (noting that nationally chartered bank is exempt from LUTPA).
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Re: Louisiana: Does not apply to Banks

Postby Administrator » Wed Nov 12, 2014 3:54 pm

David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Re: Louisiana: Does not apply to Banks

Postby Administrator » Wed Nov 12, 2014 3:55 pm

See http://www2.fdic.gov/idasp/index.asp, the FDIC's institution directory search feature, noting that Wells Fargo
Bank, N.A. has been financially insured since January 1, 1934. The court may take judicial notice of Wells Fargo's
status as reported in the public record, including official government web sites, for purposes of a Rule 12(b) motion
to dismiss. See Wells Fargo Bank v. Favino, No. 1:10-cv-571, 2011 WL 1256771 at *9 n.2 (N.D. Ohio March 31,
2011); Coppes v. Wachovia Mortgage Co., No. 2:10-cv-01689, 2010 WL 4483817 at *3 (E.D. Cal. Nov. 1, 2010);
Paralyzed Veterans of Am. v. McPherson, 2008 WL 4183981 at **5-6 (N.D. Cal. Sept. 9, 2008) (taking judicial
notice of information appearing on official government websites); See also Binford v. United States, 436 F.3d 1252,
1256 n.7 (10th Cir. 2006); Laborer's Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir.
2002) (taking judicial notice of information on FDIC website); Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir.
1995) (reference to public record documents appropriate in a Rule 12(b)(6) motion); Cinel v. Connick, 15 F.3d 1338,
1343 n.6 (5th Cir. 1994); Liu v. U.S., 93 Fed. Cl. 184, 191 n.7 (Fed. Cl. 2010).
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association


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