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EASTER v. AMERICAN WEST FINANCIAL

No. 03-35041.

381 F.3d 948 (2004)

Don EASTER, Plaintiff, and John Zacher; Bonnie Zacher, and the marital community composed thereof; on their own behalf and on behalf of all others similarly situated; Gregory Zoro; Jeffrey Stone; Janita Stone, and the marital community composed thereof; Mark Mayfield; Tamara Mayfield, and the marital community composed thereof; James Brown; Margaret Brown, and the marital community composed thereof, on their own behalf and on behalf of all others similarly situated; Paula Scott, Plaintiffs-Appellants, v. AMERICAN WEST FINANCIAL, a Nevada Corporation, Defendant, and Union Financial Corp., a California Corporation; PSB Lending Corporation, a Nevada corporation; Empire Funding Home Loan Owner Trust 1997-1, a Delaware business trust; Empire Funding Home Loan Owner Trust 1997-2, a Delaware business trust; Empire Funding Home Loan Owner Trust 1997-3, a Delaware business trust; Empire Funding Home Loan Owner Trust 1997-4, a Delaware business trust; Empire Funding Home Loan Owner Trust 1998-1, a Delaware business trust; Empire Funding Home Loan Owner Trust 1998-2, a Delaware business trust; Empire Funding Home Loan Owner Trust 1998-3, a Delaware business trust; Empire Funding Home Loan Owner Trust 1999-1, a Delaware business trust; Ocwen Federal Bank FSB, a United States savings bank; Tripoint Capitol Corporation, a California Corporation; Argent Mortgage Corporation, a California corporation fka Clearview Capital Corporation; TMS Mortgage Inc., a New Jersey corporation; Financial Asset Securities Corp Mego Mortgage Home Loan Owner Trust 1997-1, a Delaware business trust; Financial Asset Securities Corp Mego Mortgage Home Loan Owner Trust 1997-2, a Delaware business trust; Financial Asset Securities Corp Mego Mortgage Home Loan Owner Trust 1997-3, a Delaware business trust; Financial Asset Securities Corp Mego Mortgage Home Loan Owner Trust 1997-4, a Delaware business trust; FirstPlus Home Loan Owner Trust 1995-3; FirstPlus Home Loan Owner Trust 1995-4; FirstPlus Home Loan Owner Trust 1996-1; FirstPlus Home Loan Owner Trust 1996-2; FirstPlus Home Loan Owner 1996-4; FirstPlus Home Loan Owner Trust 1997-1; FirstPlus Home Loan Owner Trust 1997-2; FirstPlus Home Loan Owner Trust 1997-3; US Bank NA ND; American Mortgage Professionals Inc., a California corporation; FirstPlus Home Loan Owner Trust 1996-3, a Delaware business trust; FirstPlus Home Loan Owner Trust 1997-4, a Delaware business trust; FirstPlus Home Loan Owner 1998-1, a Delaware business trust; FirstPlus Home Loan Owner Trust 1998-2, a Delaware business trust; FirstPlus Home Loan Owner Trust 1998-3, a Delaware business trust; FirstPlus Home Loan Owner 1998-4, a Delaware corporation; FirstPlus Home Loan Owner Trust 1998-5, a Delaware business trust; German American Capital Corporation, a Maryland corporation; Paine Webber Real Estate Securities, Inc., a Delaware corporation; Ace Securities Corporate Home Loan Trust 1999A, a Delaware business trust; Sovereign Bank, a United States savings bank; Real Time Resolutions Inc., a Texas corporation; PB Reit Inc.; PB Investment Corp.; United National Home Loan Owner Trust 1999-1; United National Bank Home Loan Owner Trust 1999-2, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed August 31, 2004.

Attorney(s) appearing for the Case

Christopher I. Brain, Beth E. Terrell, Michael D. Daudt, Toby J. Marshall, Tousley Brain Stephens PLLC, Seattle, Washington, for the appellants.

Michele Radosevich, Davis Wright Tremaine LLP, Seattle, Washington, for appellees TMS Mortgage, Inc., UBS Warburg Real Estate Securities, Inc.

James B. Hoff, Bullivant Houser Bailey PC, Seattle, Washington, for appellee American Mortgage Professionals.

Kevin Bay, Ryan Swanson & Cleveland, PLLC, Seattle, Washington and Antoinette P. Hewitt, Michael J. Mills, Kutak Rock, LLP, Irvine, California, for appellees FirstPlus Home Loan Trust 1996-2, FirstPlus Home Loan Owner Trust 1996-3, FirstPlus Home Loan Owner Trust 1996-4, FirstPlus Home Loan Owner Trust 1997-1, Empire Funding Home Loan Owner Trust 1998-3, Financial Asset Securities Corp. Mego Mortgage Home Loan Owner Trust 1997-1, Mego Mortgage Home Loan Owner Trust 1997-2, Ace Securities Corporate Home Loan Trust 1999A, Real Time Resolutions, Inc., German American Capitol Corporation.

Richard M. Clinton, Douglas L. Davies, Thuy Nguyen Leeper, Dorsey & Whitney LLP, Seattle Washington, for appellees FirstPlus Home Loan Owner Trust 1997-2, FirstPlus Home Loan Owner Trust 1997-3, FirstPlus Home Loan Owner Trust 1997-4, FirstPlus Home Loan Owner Trust 1998-1, FirstPlus Home Loan Owner Trust 1998-2, FirstPlus Home Loan Owner Trust 1998-3, FirstPlus Home Loan Owner Trust 1998-4, FirstPlus Home Loan Owner Trust 1998-5, Empire Funding Home Loan Owner Trust 1997-1, Empire Funding Home Loan Owner Trust 1997-2, Empire Funding Home Loan Owner Trust 1997-3, Empire Funding Home Loan Owner Trust 1997-4, Empire Funding Home Loan Owner Trust 1998-1, Empire Funding Home Loan Owner Trust 1998-2, Empire Funding Home Loan Owner Trust 1999-1, U.S. Bank National Association, N.D., Financial Asset Securities Corp. Mego Mortgage Home Loan Owner Trust 1997-3, Financial Asset Securities Corp. Mego Mortgage Home Loan Owner Trust 1997-4, GRMT Mortgage Loan Trust 2001-1, co-counsel for PSB Lending Corporation.

Jeffrey S. Miller, Foster Pepper & Shefelman PLLC, Seattle, Washington, for Ocwen Federal Bank, FSB.

J. William Ashbaugh, Kenneth Hobbs, Seattle, Washington, for PB REIT, Inc., PB Investment Corporation.

Before: TASHIMA, PAEZ, and BEA, Circuit Judges.

BEA, Circuit Judge:

I. Introduction

Washington's usury statute prohibits ordinary lenders from making loans bearing interest rates in excess of 12%. WASH. REV. CODE § 19.52.020. However, Washington's Consumer Loan Act (CLA) permits licensed lenders to charge interest rates up to 25% to borrowers with less than perfect credit. WASH. REV. CODE §§ 31.04.005, 31.04.035, 31.04.105. Washington also limits by statute the amount of origination fees...

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