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Courts have found that OCC regulations preempt state law claims against federally-chartered financial institutions challenging:

  • • Fees for cashing checks at the bank on which the check is written (“on us” checks);238
  • • Fees for ATM usage by noncustomers;239
  • • Fees for processing garnishment orders when the fee reduces the amount the creditor receives;240
  • • Failure to disclose that the fee on a payroll card could be avoided by withdrawing cash at the teller window.241

A court held that a state law prohibiting banks from charging account service fees against child-actors’ trust fund accounts was not preempted.242 Since the OCC had not issued any determination that this law was preempted, the only possible basis for preemption would be the court’s own application of the Barnett Bank conflict preemption standard.243 Because the statute did not prohibit the fees themselves, but only had the effect of requiring them to be debited from the non-trust portion of the account, the court held that it was not preempted.


  • 238 {227} Baptista v. JPMorgan Chase Bank, 640 F.3d 1194 (11th Cir. 2011); Wells Fargo Bank v. James, 321 F.3d 488, 490, n. 2 (5th Cir. 2003). See also Pereira v. Regions Bank, 752 F.3d 1354 (11th Cir. 2014) (since Florida law on fee for cashing check would be preempted as to a national bank, Florida branch of Alabama state-chartered bank need only comply with Alabama, not Florida, law pursuant to 12 U.S.C. § 1831a(j)).

  • 239 {228} Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551 (9th Cir. 2002); Metrobank v. Foster, 193 F. Supp. 2d 1156 (S.D. Iowa 2002).

  • 240 {229} Monroe Retail, Inc. v. RBS Citizens, 589 F.3d 274 (6th Cir. 2009) (rejecting a garnishment-creditor’s conversion claim, based on state garnishment law, that challenged the bank’s practice of recovering its own garnishment fee before turning the remainder of the account over to the creditor).

  • 241 {230} Robinson v. Bank of Am., 2011 WL 5870541 (C.D. Cal. Oct. 19, 2011) (rejecting challenge based on common law fraud and state UDAP statute; applying the claims would prevent or significantly interfere with the bank’s authorization to exercise its deposit-taking powers without regard to state law limitations concerning disclosure requirements), aff’d, 525 Fed. Appx. 580 (9th Cir. 2013).

  • 242 {231} Phillips v. Bank of Am., 186 Cal. Rptr. 3d 434 (Cal. Ct. App. 2015).

  • 243 {232} See § 1.5.2, supra.