Quicken Loans, Inc. v. Wood

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

QUICKEN LOANS, INC., a Michigan 
corporation,
Plaintiff-Appellant,
No. 04-16244
v.
WILLIAM P. WOOD, in his official  D.C. No.
CV-03-00256-GEB
capacity as Commissioner of the
California Department of
Corporations,
Defendant-Appellee.


QUICKEN LOANS, INC., a Michigan 
corporation,
Plaintiff-Appellee,
No. 04-16312
v.
WILLIAM P. WOOD, in his official  D.C. No.
CV-03-00256-GEB
capacity as Commissioner of the
OPINION
California Department of
Corporations,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding

Argued and Submitted
March 14, 2006—San Francisco, California

Filed May 22, 2006

5593
5594 QUICKEN LOANS, INC. v. WOOD
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Goodwin
5596 QUICKEN LOANS, INC. v. WOOD

COUNSEL

Edward P. Sangster, San Francisco, California, for the
plaintiff-appellant/cross-appellee.

Douglas M. Gooding, Corporations Counsel, San Francisco,
California, for the defendant-appellee/cross-appellant.

OPINION

GOODWIN, Circuit Judge:

These cross-appeals involve the California Department of
Corporations Commissioner’s (Commissioner) efforts to
 QUICKEN LOANS, INC. v. WOOD 5597
enforce previous versions of California’s per diem loan inter-
est statutes. The district court held that these laws were pre-
empted by the Depository Institutions Deregulation and
Monetary Control Act (DIDMCA), 12 U.S.C. § 1735f-7a, but
denied a permanent injunction to prevent the Commissioner
from enforcing the preempted statutes.

Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949 (9th Cir.
2005), held, after the district court had ruled in this case, that
California’s per diem statutes are not preempted by the DID-
MCA. Wells Fargo controls here.

The district court also held that the Alternative Mortgage
Transaction Parity Act (Parity Act), 12 U.S.C. §§ 3801-06,
does not preempt the per diem statutes as applied to alterna-
tive mortgage transactions. We affirm this conclusion because
California’s per diem statutes are not expressly preempted, do
not directly conflict with, and do not impede Congress’ pur-
poses in enacting the Parity Act. The per diem statutes there-
fore are not preempted by the Parity Act.

Finally, we affirm the district court’s dismissal of Quicken
Loans’ as-applied federal takings claim for lack of ripeness,
and hold that any facial claim was waived.

I. Background

Quicken Loans (Quicken) is licensed to engage in residen-
tial mortgage lending in California by the California Depart-
ment of Corporations Commissioner. See CAL. FIN. CODE
§§ 50000 et seq.

Quicken describes its loan process as follows:

After Quicken Loans approves a loan, Quicken
Loans and its California borrowers typically com-
plete the lending process through independent
escrow companies . . . . Quicken Loans deposits the
5598 QUICKEN LOANS, INC. v. WOOD
funds for the loan into the escrow. The borrower
delivers the executed loan documents to the escrow
company . . . .

When the conditions required to close the transac-
tion have been satisfied, the escrow company is
instructed by Quicken Loans to disburse the funds to
or on behalf of the borrower, and to deliver the deed
of trust to the County Recorder’s office for recorda-
tion in the public records . . . .

....

Quicken Loans historically has instructed the
escrow company to assess interest commencing on
the date the escrow company disburses the loan
funds directly to the borrower, or to a third party on
the borrower’s behalf.

Quicken admits that “there are occasional delays between (a)
the disbursement of loan funds to the borrower and (b) ‘recor-
dation’ of the deed of trust as interpreted by the Commission-
er.” During these delays Quicken assesses interest on the
disbursed loans.

Because Quicken is licensed under the California Residen-
tial Mortgage Lending Act, the Act’s prohibition on charging
interest in excess of one day prior to recordation applies to
Quicken. CAL. FIN. CODE § 50204(o) (2000) (amended 2003
to prohibit violating a similar provision located at CAL. CIV.
CODE § 2948.5). In addition, California Civil Code section
2948.5 provides that a borrower is not required to pay interest
for a period in excess of one day prior to recording. CAL. CIV.
CODE § 2948.5 (1990) (amended 2003 to prohibit interest pay-
ments more than one day prior to disbursement instead of one
day prior to recordation). Although the statutes were amended
to prohibit interest payments more than one day prior to dis-
bursement, these amendments did not become effective until
 QUICKEN LOANS, INC. v. WOOD 5599
after Quicken had received interest payments in violation of
the earlier applicable laws. All references to these statutes
refer to the prior versions of the statutes unless otherwise
specified.

On March 11, 2002, the Commissioner sent Quicken a let-
ter asserting that Quicken had violated and was continuing to
violate these pre-amendment statutes. On January 28, 2003,
the Commissioner ordered Quicken to review all loans it had
made in California beginning October 14, 1999, and to refund
those interest payments received which violated the per diem
statutes. He also ordered Quicken to pay the borrowers 10%
interest on the refunded interest, and to submit a report detail-
ing the loans and amounts refunded. The Commissioner
sought to revoke Quicken’s license for failure to comply with
California law.

Quicken’s First Amended Complaint alleged that the DID-
MCA and the Parity Act preempt the per diem statutes, and
that the per diem statutes effected an unlawful taking in viola-
tion of the Constitution’s Takings Clause. Quicken and the
Commissioner cross-moved for summary judgment.

The district court granted Quicken’s motion for partial
summary judgment on the DIDMCA claim, dismissed Quick-
en’s takings claim for lack of ripeness, and granted the Com-
missioner’s motion for summary judgment on the Parity Act
claim.

Quicken assigns error to the resolutions of the Parity Act
and Takings Clause claims, and to the denial of a permanent
injunction barring enforcement of the per diem statutes to the
extent they are preempted by the DIDMCA. The Commis-
sioner cross-appeals, assigning error to the resolution of the
DIDMCA claim.

II. DIDMCA

[1] Wells Fargo held that California’s per diem statutes are
not preempted by the DIDMCA. 419 F.3d at 969. Quicken
5600 QUICKEN LOANS, INC. v. WOOD
attempts to argue that Wells Fargo should not be followed
because it was decided by a three-judge panel rather than by
the court sitting en banc, and that Wells Fargo’s DIDMCA
discussion is dicta. In general, “one three-judge panel of this
court cannot reconsider or overrule the decision of a prior
panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir.
1992). Furthermore, the Wells Fargo DIDMCA discussion
begins with the statement that “we must decide this substan-
tive preemption issue.” Wells Fargo Bank N.A., 419 F.3d at
967. So much for “dicta,” and Quicken cannot distinguish
Wells Fargo. Accordingly, the DIDMCA does not preempt
the California per diem statutes here. As Quicken does not
prevail on the merits, an injunction is not available. See
Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531,
546 n.12 (1987).

III. Parity Act

[2] Congress enacted the Parity Act after finding that “in-
creasingly volatile and dynamic changes in interest rates ha[d]
seriously impared [sic] the ability of housing creditors to pro-
vide consumers with fixed-term, fixed-rate credit secured by
interests in real property.” 12 U.S.C. § 3801(a). Congress
noted that the Office of Thrift Supervision (OTS), among
other agencies, had “recognized the importance of alternative
mortgage transactions and ha[d] adopted regulations authoriz-
ing federally chartered depository institutions to engage in
alternative mortgage financing.” Id. Congress enacted the Par-
ity Act “to eliminate the discriminatory impact that those reg-
ulations have upon nonfederally chartered housing creditors.”
Id. § 3801(b). The Parity Act authorizes nonfederally char-
tered housing creditors to “make, purchase, and enforce alter-
native mortgage transactions” when those transactions are
made “in accordance with regulations governing alternative
mortgage transactions as issued by the Director of the Office
of Thrift Supervision.” Id. § 3803(a). In a section entitled
“Preemption of State constitutions, laws, or regulations,” the
Parity Act provides that “[a]n alternative mortgage transaction
 QUICKEN LOANS, INC. v. WOOD 5601
may be made by a housing creditor in accordance with this
section, notwithstanding any State constitution, law, or regu-
lation.” Id. § 3803(c).

Quicken asserts that the district court erred in holding that
the Parity Act does not preempt the California per diem stat-
utes as applied to alternative mortgage transactions. Quicken
makes two arguments: (1) the per diem statutes are preempted
because they conflict with an OTS regulation on adjustments
and (2) the per diem statutes are expressly preempted because
they destroy parity between federally and non-federally char-
tered lenders.

The Supremacy Clause provides that federal laws “shall be
the supreme Law of the Land; . . . any Thing in the Constitu-
tion or Laws of any State to the Contrary notwithstanding.”
U.S. CONST. art. VI, cl. 2. Preemption analysis must “start
with the assumption that the historic police powers of the
States were not to be superseded by the Federal Act unless
that was the clear and manifest purpose of Congress.” Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). “The pur-
pose of Congress is the ultimate touchstone of preemption
analysis.” Cipollone v. Liggett Group, 505 U.S. 504, 516
(1992) (internal quotation marks omitted). State law is pre-
empted if Congress’ intent to preempt is (1) explicit in the
federal statute’s language or (2) implicit in its structure and
purpose; (3) if state law actually conflicts with federal law; or
(4) if federal law so thoroughly occupies the legislative field
that Congress left no room for state regulation. Id. Conflict
preemption exists “where ‘compliance with both federal and
state regulations is a physical impossibility,’ or where state
law ‘stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress.’ ” Gade
v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)
(quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132, 142-43 (1963); and Hines v. Davidowitz, 312 U.S.
52, 67 (1941)). Quicken’s arguments implicate both express
and conflict preemption.
5602 QUICKEN LOANS, INC. v. WOOD
A. Conflict with 12 C.F.R. § 560.357

[3] The Parity Act authorized the OTS to identify, describe,
and publish those regulations that are inappropriate and inap-
plicable to nonfederally chartered housing creditors. 12
U.S.C. § 3801 note. The OTS identified 12 C.F.R. § 560.35 as
“appropriate and applicable for state housing creditors.” 12
C.F.R. § 560.220(b). This regulation provides that adjust-
ments to the payment amount for a home loan must comply
with the following limitations:

Adjustments to the payment and the loan balance
that do not reflect an interest-rate adjustment may be
made if:

(1) The adjustments reflect a change in an index
that may be used pursuant to paragraph (d) of this
section;

(2) In the case of a payment adjustment, the
adjustment reflects a change in the loan balance or
is made pursuant to a formula, or to a schedule spec-
ifying the percentage or dollar change in the pay-
ment as set forth in the loan contract; or

(3) In the case of an open-end line-of-credit loan,
the adjustment reflects an advance taken by the bor-
rower under the line-of-credit and is permitted by the
loan contract.

12 C.F.R. § 560.35(c).

Quicken contends that the per diem statutes’ prohibition on
collecting interest more than one day prior to recording con-
flicts with § 560.35. The conflict, it argues, arises because
when recording occurs more than one day after disbursement,
the per diem statutes “require adjustments in the payment
amount based upon a factor not permitted by the regulation:
 QUICKEN LOANS, INC. v. WOOD 5603
the arbitrary date of late recording.” This amounts to a con-
flict argument invoking physical impossibility. The Commis-
sioner contends that the regulation “does not appear in any
way intended to address (or preempt) state statutes governing
commencement of interest.” Likewise, the district court held
that had Quicken complied with the per diem statutes in the
first place, no adjustments would be necessary.

[4] Despite Quicken’s argument, there is no actual conflict
between the California per diem statutes and the OTS regula-
tion on adjustments. It is not physically impossible to charge
no interest for more than one day before recording and to
adjust payments only in accordance with the OTS regulation’s
requirements. Because commencement of interest is not a
form of interest adjustment, summary judgment for the Com-
missioner was appropriate.

Although Quicken also contends that the Commissioner
failed to meet his burden to show that there was no genuine
issue of material fact regarding the Parity Act, this argument
is again based on Quicken’s conflation of a payment adjust-
ment with commencement of interest. This is a legal rather
than factual argument. The Commissioner satisfied his burden
to show there was no genuine issue of material fact.

B. Express Preemption

[5] Quicken also argues that the Parity Act explicitly pre-
empts the per diem statutes. Quicken invokes 12 U.S.C.
§§ 3801(b) and § 3803(c) to support this argument. Section
3801(b) states the purpose of the Parity Act:

It is the purpose of this chapter to eliminate the dis-
criminatory impact that those regulations [authoriz-
ing federally chartered depository institutions to
engage in alternative mortgage financing] have upon
nonfederally chartered housing creditors and provide
them with parity with federally chartered institutions
5604 QUICKEN LOANS, INC. v. WOOD
by authorizing all housing creditors to make, pur-
chase, and enforce alternative mortgage transactions
so long as the transactions are in conformity with the
regulations issued by the Federal agencies.

12 U.S.C. § 3801(b). Section 3803(c) is entitled “Preemption
of State constitutions, laws or regulations,” and provides that
“[a]n alternative mortgage transaction may be made by a
housing creditor in accordance with this section, notwith-
standing any State constitution, law, or regulation.”

[6] Quicken contends that because the per diem statutes do
not apply to federally chartered housing creditors, the Parity
Act expressly preempts them because “such preemption is
necessary to achieve parity.” The Parity Act’s preemption
clause does not preempt every state law regulating alternative
mortgage transactions (AMTs), nor does the Act contain lan-
guage mandating that federally and nonfederally chartered
housing creditors must be treated identically in every respect
under state law. See, e.g., Ansley v. Ameriquest Mortgage Co.,
340 F.3d 858, 864 (9th Cir. 2003) (“[T]he Parity Act d[oes]
not completely preempt all California laws relating to alterna-
tive mortgage transactions so as to create federal jurisdic-
tion.”); Nat’l Home Equity Mortgage Ass’n v. Office of Thrift
Supervision, 373 F.3d 1355, 1359 (D.C. Cir. 2004) (“[T]he
Parity Act does not unambiguously express an intent to pre-
empt all state laws governing AMTs.”); Black v. Fin. Free-
dom Senior Funding Corp., 112 Cal. Rptr. 2d 445, 456 (Cal.
Ct. App. 2001) (“[T]he preemption language of the Parity Act
does not contain a clear manifestation of congressional intent
to preempt all state laws concerning the terms and marketing
of alternative mortgage transactions.”); 12 U.S.C. § 3802(2)
(requiring housing creditors to be “licensed under applicable
State law” and “subject to the applicable regulatory require-
ments and enforcement mechanisms provided by State law”).
Because the Parity Act’s language does not explicitly preempt
state statutes which regulate the commencement of interest,
Quicken’s express preemption argument fails.
 QUICKEN LOANS, INC. v. WOOD 5605
C. Extent of Congressional Intent to Preempt

Quicken’s claim, despite its identification as an express
preemption argument, is better construed as an argument that
the per diem statutes “ ‘stand[ ] as an obstacle to the accom-
plishment and execution of the full purposes and objectives of
Congress.’ ” Gade, 505 U.S. at 98 (quoting Hines v. David-
owitz, 312 U.S. at 67). This is because only by looking to
Congress’ purposes and objectives could one hope to identify
what “preemption is necessary to achieve parity.” Quicken
does not explain what it means by this phrase, although it
does distinguish it from “absolute parity,” which it does not
seek.

By disclaiming the standard of “absolute parity,” Quicken
implicitly concedes that the Parity Act does not preempt “all
state restrictions on alternative mortgage transactions made by
non-federally chartered creditors.” Quicken argues for pre-
emption “to the extent required for ‘parity’ — not ‘absolute
parity.’ ” Without offering a formulation of parity for this
court to adopt, Quicken argues that “the Parity Act’s preemp-
tive scope is not limited to state restrictions that conflict with
regulations identified by the OTS.”

We are therefore asked to articulate the preemptive scope
of the Parity Act. Notwithstanding § 3801(b) and § 3803(c),
Congress explicitly referred to the ongoing validity of state
licensing requirements and “regulatory requirements and
enforcement mechanisms provided by State law” governing
housing creditors. 12 U.S.C. § 3802(2). Given this explicit
reference, Congress did not intend to preempt all state regula-
tion. Quicken does not seek this ‘absolute parity’ holding, and
we do not adopt it. See also Black, 112 Cal. Rptr. 2d at 457
(declining to read § 3801(b) to require absolute parity or com-
plete preemption).

We must therefore determine the scope of the clause: “not-
withstanding any State constitution, law, or regulation.” 12
5606 QUICKEN LOANS, INC. v. WOOD
U.S.C. § 3803(c). Other courts asked to rule on the preemp-
tive scope of the Parity Act have confronted direct conflicts
between state laws and OTS regulations. See, e.g., Nat’l
Home Equity Mortgage Ass’n v. Face, 239 F.3d 633 (4th Cir.
2001) (state prepayment law); Shinn v. Equity Mortgage
Servs., Inc., 96 F. Supp. 2d 419 (D.N.J. 2000) (same); Glu-
kowsky v. Equity One, Inc., 180 N.J. 49 (2004) (same). This
case does not present a direct conflict with an OTS regulation,
nor does it present a direct conflict with the Parity Act
because the per diem statutes do not prohibit alternative mort-
gage transactions.

[7] The California Court of Appeals has addressed whether
California’s per diem statutes are preempted by the Parity Act
because they “stand[ ] as an obstacle to the accomplishment
and execution of the full purposes and objectives of Con-
gress.” Black, 112 Cal. Rptr. 2d at 456. That court rejected the
argument that “the goal of the Parity Act is national unifor-
mity in the regulation of state-chartered housing lenders with
respect to alternative mortgage transactions” because “[g]iven
the dearth of applicable federal regulations, the national uni-
form standard for state-chartered housing lenders would be
‘anything goes.’ That is hardly a uniform standard.” Id. at
457. It specifically rejected the argument that Congress’ pur-
pose required preemption of the state laws at issue because
the state claims did “not seek to prohibit or impede the mak-
ing of alternative mortgage transactions that comport with the
applicable federal regulations,” and the claims do not “tread
on the areas of federal regulation applicable to non-federally
chartered housing creditors, namely, [those areas covered by
regulations the OTS identified as applicable to non-federally
chartered housing creditors].” Id. at 458.

[8] Black’s reasoning applies to this case as well. Here,
California’s per diem statutes do not ‘tread on’ an area of fed-
eral regulation which the OTS has identified as applicable to
non-federally chartered housing creditors. The per diem stat-
utes also do not prohibit the making of alternative mortgage
 QUICKEN LOANS, INC. v. WOOD 5607
transactions. That leaves the issue of impeding the making of
alternative mortgage transactions. This essentially returns the
analysis to its original point of determining what is ‘necessary
to achieve parity’ — i.e., what impedes the making of alterna-
tive mortgage transactions.

California’s per diem statutes apply to mortgages on real
property, and do not distinguish between alternative mort-
gages and fixed-rate, fixed-term mortgages. CAL. CIV. CODE
§ 2948.5. The per diem statutes therefore do not impede the
making of alternative mortgage transactions per se. These
statutes do not apply to federally chartered housing creditors
because Congress delegated “complete authority to regulate
federal savings and loan associates” to the OTS. Wash. Mut.
Bank v. Superior Court of L.A. County, 95 Cal. App. 4th 606,
618 (Cal. Ct. App. 2002).

Quicken argues that because the statutes do not apply to
federally chartered creditors, they should not apply to non-
federally chartered creditors. However, Congress has not del-
egated similarly complete authority to the OTS to regulate
nonfederally chartered housing creditors. 12 U.S.C. § 3802.
The full purposes and objectives of Congress in enacting the
Parity Act do not include delegating complete authority to
regulate nonfederally chartered housing creditors to the OTS.
Id. § 3802. Section 3802(2) suggests that Congress did not
intend to preempt all state laws relating to nonfederally char-
tered housing creditors. Indeed, § 3801 suggests that the Par-
ity Act was intended to eliminate the discriminatory impact
that regulations authorizing federally chartered depository
institutions to engage in alternative mortgage financing have
upon nonfederally chartered housing creditors. Section 3801
further states that it is the purpose of the Parity Act to provide
nonfederally chartered housing creditors with parity by autho-
rizing all housing creditors to make, purchase, and enforce
alternative mortgage transactions so long as the transactions
are in conformity with OTS regulations.
5608 QUICKEN LOANS, INC. v. WOOD
[9] The per diem statutes do not apply exclusively to alter-
native mortgages, but rather are statutes of general applicabil-
ity. They do not touch upon the areas identified by the OTS
as essential and intrinsic to the ability to engage in alternative
mortgage transactions. The per diem statutes do not restrict a
housing creditor’s ability to make an alternative mortgage
transaction, any more than does any statute which applies to
nonfederally chartered housing creditors but not to federally
chartered housing creditors. Because the California per diem
statutes do not conflict with OTS regulations applicable to
nonfederally chartered housing creditors; do not prohibit mak-
ing, purchasing, or enforcing alternative mortgage transac-
tions; and do not inhibit the making, purchasing, or enforcing
of alternative mortgage transactions per se, they are not pre-
empted by the Parity Act.

IV. Takings Clause

Quicken argues that the district court erred when it dis-
missed Quicken’s takings claim as unripe. Quicken asserts
that the district court applied the wrong ripeness test.

A. As-Applied Takings Claim

[10] If Quicken is pursuing an as-applied takings claim, it
must establish that (1) “the government entity charged with
implementing the regulations has reached a final decision
regarding the application of the regulations to the property at
issue,” and (2) Quicken has sought “compensation through
the procedures the State has provided for doing so.” William-
son County Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 186, 194 (1985). The district
court correctly held that Quicken did not establish either of
these requirements.

[11] There is no indication in the record that Quicken
sought compensation through any California procedures.
 QUICKEN LOANS, INC. v. WOOD 5609
However, there are some situations in which a plaintiff need
not first seek compensation from the state:

[A] plaintiff may be excused from this requirement
if he demonstrates that “the inverse condemnation
procedure [of the state] is unavailable or inade-
quate.” [Williamson, 473 U.S.] at 197, 105 S.Ct.
3108. In addition, “an exception exists where the
state does not have a ‘reasonable, certain, and ade-
quate provision for obtaining compensation’ at the
time of the taking,” San Remo Hotel v. City and
County of San Francisco, 145 F.3d 1095, 1101-02
(9th Cir. 1998); see also Levald, Inc. v. City of Palm
Desert, 998 F.2d 680, 687 (9th Cir. 1993), or where
resorting to state remedies would be futile, see City
of Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687, 710, 119 S.Ct. 1624, 143 L.Ed.2d 882
(1999).

Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835,
851 (9th Cir. 2001) (en banc). There is no indication in the
record that Quicken demonstrated that any of these exceptions
apply.

B. Facial Takings Claim

[12] On appeal, it appears that Quicken is asserting a facial
takings claim that the per diem statutes do not substantially
advance legitimate state interests. For this claim, “the denial
of just compensation is irrelevant for purposes of ripeness.”
San Remo Hotel v. City and County of San Francisco, 145
F.3d 1095, 1102 (9th Cir. 1998). Accordingly, this claim was
ripe when the per diem statutes were enacted. See id.

[13] However, Quicken failed to assert this facial takings
claim below. At a hearing in the district court, the district
judge sought to clarify what types of takings claims Quicken
was making:
5610 QUICKEN LOANS, INC. v. WOOD
THE COURT: What type of takings issue is
involved? Is it a facial takings or an
applied takings or both?

MR. SANGSTER: It’s an applied takings, Your
Honor. And it’s an applied tak-
ings because of the manner in
which the Commissioner is
interpreting the statute, the
recording statute.

THE COURT: Okay.

MR. SANGSTER: The Commissioner — sorry.

THE COURT: So, a facial takings is not at issue,
it’s just applied takings?

MR. SANGSTER: I guess I haven’t thought of it
in the terms Your Honor — I
was expecting, when Your
Honor started, whether it was
per se or regulatory, and I’m
not focused as much on facial.
It’s as applied, because there is
a manner in which the Com-
missioner could interpret this
statute —

THE COURT: I have a general idea what is meant
by “as applied.”

MR. SANGSTER: Yes, Your Honor.

THE COURT: I’m trying to determine whether a
facial taking is involved, and you
are telling me that it is not
 QUICKEN LOANS, INC. v. WOOD 5611
involved. Is it involved in your
complaint at all?

MR. SANGSTER: No, Your Honor.

THE COURT: So, your complaint just deals with
an applied taking?

MR. SANGSTER: Yes, Your Honor.

THE COURT: All right.

The district court relied on this discussion in framing the tak-
ings clause issue in its order:

At the hearing on June 30, 2003, Quicken Loans
clarified that neither its Complaint nor its regulatory
taking motion asserts a facial challenge against the
per diem statutes; rather it challenges the Commis-
sioner’s application of the statutes to the interest
Quicken Loans seeks to earn on mortgage
loans.[FN5]

[FN5] Therefore Quicken Loans has withdrawn
any facial challenge asserted in its Com-
plaint.

Although Quicken could have asserted a ripe facial takings
claim, it expressly waived this argument.

CONCLUSION

For the reasons stated above, the summary judgment in
favor of Quicken on the DIDMCA claim is VACATED. We
AFFIRM the judgment denying Quicken a permanent injunc-
tion on the DIDMCA claim, granting summary judgment on
the Parity Act claim, and dismissing the takings claim.
5612 QUICKEN LOANS, INC. v. WOOD
Vacated in part, affirmed in part, and remanded. Commis-
sioner to recover costs on appeal.