WEISS v. WASHINGTON MUTUAL BANK

Filed 1/29/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person, Judge.  Affirmed.

            Huang P.C., Lawyers, Patrick K. Huang, Gail Sanes and Angela Lin for Plaintiffs and Appellants.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Tom Greene, Chief Assistant Attorney General, Albert Norman Shelden, Assistant Attorney General, Ronald A. Reiter and Michele R. Van Gelderen, Deputy Attorneys General, for the State of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

            Stroock & Stroock & Lavan, Julia B. Strickland, Scott M. Pearson, JiAe Moon, David W. Moon; Office of the General Counsel, Theresa Marchlewski and Edward J. McNamara for Defendants and Respondents.

            The question on this appeal is whether a lawsuit challenging a federal savings and loan association's prepayment penalty formula is preempted by the Home Owners' Loan Act (HOLA) and the regulations promulgated by the Office of Thrift Supervision (OTS).  (12 U.S.C. § 1461 et seq.; 12 C.F.R. §§ 560.2, 560.34).  Our answer is yes.

FACTS[1]

A.

            In July 2003, Mitchell Weiss (and others included in our references to Weiss) borrowed about $4 million from Washington Mutual Bank and signed two 10-year promissory notes -- one for $1.175 million plus interest at 5.33 percent per annum and with monthly payments of $6,546.74 (secured by real property in Los  Angeles), the other for $2.85 million plus interest at 5.33 percent per annum and with monthly payments of $15,879.32 (secured by real property in Beverly Hills).  A prepayment addendum to each note set forth a formula for calculating the â€