Opinion
CAUSE NO. IP 01-1336-C H/S
September 30, 2002
ENTRY
On May 30, 2002, the court dismissed plaintiff's original complaint for failure to state a claim upon which relief can be granted. The court gave plaintiff an opportunity to file an amended complaint, which she filed on June 25, 2002. Defendants then moved to dismiss the amended complaint with prejudice.
The amended complaint does not differ from the original complaint in any respect material to this court's analysis of the issue of preemption under the National Banking Act, 12 U.S.C. § 85, as interpreted in Marquette National Bank v. First of Omaha Serv. Corp., 439 U.S. 299 (1978), and Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735 (1996).
The court has reviewed the decision in Goleta National Bank v. Lingerfelt, 211 F. Supp.2d 711 (E.D.N.C. 2002), appeal filed, No. 02-1688 (4th Cir. filed June 21, 2002). The court in Lingerfelt was not called upon to address the merits of the preemption defense, but only to decide whether the defense was so strong and conclusive as to invoke the "extraordinary circumstances" exception to the abstention doctrine under Younger v. Harris, 410 U.S. 37 (1971), so as to warrant a federal injunction against a state enforcement proceeding testing that defense. To the extent the Lingerfelt court addressed the merits of the preemption defense, it found factual issues concerning the identity of the "real lender" and whether Ace was "the de facto lender." 211 F. Supp.2d at 717. The Lingerfelt court did not address the legal and practical problems posed by having preemption and regulatory jurisdiction depend on such an uncertain legal standard. This court respectfully adheres to the views expressed in the entry of May 30, 2002.
Accordingly, defendants' motion to dismiss is hereby granted, and this action is dismissed with prejudice. Final judgment shall be entered accordingly.
So ordered.