VOGEL, J.,
Concurring and Dissenting. — I concur with the majority opinion insofar as it affirms some parts of the judgment of dismissal but otherwise dissent.
A.
The trial court found that all of plaintiffs’ causes of action turn on the existence of an agreement requiring Washington Mutual to charge no more than the “pass-through” costs for underwriting, tax services, and wire transfers on residential mortgage loan closings. Understandably, the trial court inquired (when it sustained demurrers to plaintiffs’ earlier pleadings) about the factual basis for this agreement. The answer? Washington Mutual “requires its borrowers to pay the cost of automatic underwriting and wire transfers ... by disclosing on the HUD-1 Settlement Statement the purported costs of these fees” which, by their payment of these fees, plaintiffs agreed to pay.1 “[I]nstead of charging Plaintiffs ... for underwriting, tax services and wire transfer services, Washington Mutual charged Plaintiffs . . . amounts in excess of those services,” allegedly leading plaintiffs to believe they “were *1493paying for the actual cost of such services.”2 Notwithstanding the majority opinion’s alternative view, it is on this wobbly foundation that plaintiffs build their class action claims for violations of the unfair competition law, the Consumers Legal Remedies Act, breach of contract and conversion, alleging that Washington Mutual “illegally charged unearned” fees for these services.
The trial court ultimately concluded that plaintiffs’ allegations, however generously construed, did “not establish an implied contract. Printing charges for underwriting services, etc. on HUD-1 Statements, without more, does not create a requirement that [Washington Mutual] charge pass-through costs. The HUD-1 Statements reflect what Washington Mutual charges customers for settlement services and not (necessarily) what Washington Mutual pays for those services.”
B.
Because an implied contract arises from a mutual agreement and intent to promise that have not been expressed in words, the facts from which the promise is implied must be alleged. (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134 [4 Cal.Rptr.3d 583].) Notwithstanding plaintiffs’ admissions (in the trial court and on this appeal) that their claims depend on the existence of an implied agreement, the majority opinion finds most of plaintiffs’ claims viable without regard to the existence of an implied (or any) agreement and holds that the allegations about the HUD-1 are sufficient to state a claim for fraudulent and unfair business practices and other statutory violations. In short, the allegations the trial court found insufficient to allege so much as an implied agreement are construed by my colleagues as sufficient to allege an intentional tort and a violation of public policy resulting in harm to consumers. (Maj. opn., ante, at p. 1472.)
The majority opinion is internally inconsistent. After stating that it doesn’t matter whether there was an implied agreement, my colleagues dismiss California’s history of abstention in cases involving matters of complex economic policy (Desert Healthcare Dist. v. PacifiCare FHP, Inc. (2001) 94 Cal.App.4th 781, 794—795 [114 Cal.Rptr.2d 623]; California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205 [27 Cal.Rptr.2d 396]; Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554 [53 Cal.Rptr.2d 878]; Korens v. R. W. Zukin Corp. (1989) 212 Cal.App.3d 1054 *1494[261 Cal.Rptr. 137]) as irrelevant in this case because the gravamen of Plaintiffs’ complaint is that “Washington Mutual leads borrowers to believe it is charging them for the cost of certain services it provides, when in reality it is charging them substantially in excess of such costs.” (Maj. opn., ante, at p. 1474.) How does this work? How can it be that plaintiffs need not — and did not — allege facts supporting an implied agreement to charge only “the cost of certain services it provides”- — but have nevertheless alleged facts showing that Washington Mutual led them to believe they would be charged only the cost of certain services it provides? In my view, they haven’t alleged either claim.3
C.
Independent of the facts, I do not agree with the majority opinion’s analysis of the law.
1.
Washington Mutual is a federal savings association, authorized and existing under federal law. (12 U.S.C. § 1461 et seq., the Home Owners’ Loan Act (HOLA).) As such, its regulation, both by statute and judicial fiat, is preempted by federal law — including such matters as “[l]oan-related fees” and “[processing” charges. (12 C.F.R. § 560.2(b)(5), (10) (2006); see also Fidelity Federal Sav. & Loan Assn. v. De La Cuesta (1982) 458 U.S. 141, 144-145, 152-153 [73 L.Ed.2d 664, 102 S.Ct. 3014]; Glendale Fed. Sav. & Loan Ass’n v. Fox (C.D.Cal. 1978) 459 F.Supp. 903, 910.) Although there is an exception for state tort law, that area too is preempted if a statute or judicial ruling would have more than an incidental effect on a federal savings association’s lending practices. (Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729, 732 [130 Cal.Rptr.2d 42] [an unfair business practice *1495class action challenging a federal savings and loan association’s practice of charging a $10 fee for transmission of a payoff demand statement, over and above the fee authorized by Civ. Code, § 2943, is preempted by federal law]; Washington Mutual Bank v. Superior Court (2002) 95 Cal.App.4th 606, 610 [115 Cal.Rptr.2d 765]; American Bankers Association v. Lockyer (E.D.Cal. 2002) 239 F.Supp.2d 1000, 1011; Haehl v. Washington Mut. Bank, F.A. (S.D.Ind. 2003) 277 F.Supp.2d 933, 940; Moskowitz v. Washington Mut. Bank, FA. (2002) 329 Ill.App.3d 144 [263 Ill.Dec. 502, 768 N.E.2d 262, 266 ].)
In my view, this entire action is preempted by federal law.
2.
I also disagree with the majority opinion’s interpretation of the RESPA. RESPA section 8(b) (12 U.S.C. § 2607(b)) does not prohibit “the payment to any person of . . . compensation ... for services actually performed” (12 U.S.C. § 2607(c)(2)), and no violation occurs unless a lender charges a fee for which the lender provided no settlement services and split that unearned amount with a third party. (Mercado v. Calumet Federal Sav. & Loan Ass’n (7th Cir. 1985) 763 F.2d 269, 271; Durr v. Intercounty Title Co. of Illinois (7th Cir. 1994) 14 F.3d 1183, 1187; Echevarria v. Chicago Title & Trust Co. (7th Cir. 2001) 256 F.3d 623, 628; Boulware v. Crossland Mortg. Corp. (4th Cir. 2002) 291 F.3d 261, 265-267; Krzalic v. Republic Title Co. (7th Cir. 2002) 314 F.3d 875; Haug v. Bank of America, N.A. (8th Cir. 2003) 317 F.3d 832.)
In my view, the Fourth Circuit’s analysis in Boulware defeats the analysis relied on by my colleagues. The plaintiff in Boulware challenged a $65 credit report fee imposed by the lender on the ground that the lender had paid only $15 for the report, precisely the same sort of markup challenged in the case now before us. In affirming an order dismissing the action, Boulware held that “[t]he plain language of [12 U.S.C. § 2607(b)] makes clear that it does not apply to every overcharge for a real estate settlement service and that [12 U.S.C. § 2607(b)] . . . only prohibits overcharges when a ‘portion’ or ‘percentage’ of the overcharge is kicked back to or ‘split’ with a third party. ... By using the language ‘portion, split, or percentage,’ Congress was clearly aiming at a sharing arrangement rather than a unilateral overcharge. . . . [¶] . . . [¶] . . . Outside of a kickback or feesplitting situation, there is no way to make sense of the statutory directive that ‘[n]o person shall give and no person shall accept’ any portion of an unearned fee. . . .- [¶]. . . [¶]
*1496“. . . If we were to read [12 U.S.C. § 2607(b)] in the way [the borrower] suggests, every settlement fee would be the subject of potential litigation and discovery, leading perhaps to increased costs for real estate settlement services in the long run. Though the regulation of charging practices would not be beyond the purview of Congress, this was not Congress’ intent in enacting RESPA.” (Boulware v. Crossland Mortg. Corp., supra, 291 F.3d at pp. 265, 267.)4
In sum, I would affirm the judgment of dismissal in its entirety.
The United States Department of Housing and Urban Development describes its HUD-1 form “as a statement of actual charges and adjustments to be given to the parties in connection with the settlement” of a real estate sale transaction, (<http://www.hud.gov/of5ces/hsg/ sfh/res/resappa.cfm> [as of Sept. 18, 2006].) On its face, the form says it is provided to the parties as “a statement of actual settlement costs,” and that the amounts “paid to and by the settlement agent’ are shown. (Italics added.) Although the HUD-1 doesn’t say anything about amounts actually paid by the lender or seller or anyone else, the gist of this lawsuit is that the reference to “actual cost” constitutes an implied agreement between Washington Mutual and its borrowers to the effect that Washington Mutual will not charge the borrowers any fee that it hasn’t been charged, penny for penny, for underwriting, tax services, and wire transfers.
Or, as plaintiffs’ counsel put it at one of the hearings, the agreement is “implied in the HUD-1 that [the charge shown is] not something beyond a pass through. And when there’s a payment to a third party, when there’s nothing else being provided, the implication would be or certainly a reasonable understanding would be that the person only has to pay what it cost and not a markup.”
simply don’t understand part IV of the majority opinion. It says that “Plaintiffs have still failed to identify the contract and contractual provision under which Washington Mutual required them to pay underwriting and wire transfer costs. With regard to the fee for tax services, plaintiffs identify the deed of trust as the contract and set forth verbatim the term requiring them to pay the fee.” (Maj. opn., ante, at p. 1489.) The majority opinion concludes the allegations are sufficient to state a breach of contract cause of action because the tax service fee allegedly violated RESPA (Real Estate Settlement Procedures Act of 1974; 12 U.S.C. § 2601 et seq.) and that the deed of trust is the contract. A deed of trust is the document by which a borrower gives the lender' a lien on property to secure the borrower’s loan obligation. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1235 [44 Cal.Rptr.2d 352, 900 P.2d 601].) Deeds of trust are signed by the borrower (trustor), not the lender (beneficiary). (Greenwald & Asimow, Cal. Practice Guide: Real Property Transactions (The Rutter Group 2006) ¶ 6:336 et seq., p. 6-68.1 et seq. & Forms 6H & 61, pp. 6-186 to 6-220.) While there are surely other loan documents signed by Washington Mutual, my nickel says the deed of trust isn’t one of them.
The majority opinion’s discussion of Washington Mutual Bank v. Superior Court (1999) 75 Cal.App.4th 773 [89 Cal.Rptr.2d 560] mixes apples with oranges- — preemption vis-a-vis the regulation of federal savings and loan associations under HOLA with preemption under RESPA — and suggests that HOLA does not apply here because RESPA is not part of HOLA. (Maj. opn., ante, at pp. 1486-1488.) The case relied on by the majority opinion, Hussey-Head v. World Savings & Loan Assn. (2003) 111 Cal.App.4th 773 [4 Cal.Rptr.3d 171], does not support the majority opinion’s leap in logic. To the contrary, Hussey-Head, which I wrote, holds only that an action for fraud under the California Consumer Credit Reporting Agencies Act (Civ. Code, § 1785.1 et seq.) — alleging that the lender provided false credit information about the plaintiff — had nothing to do with lending regulations and thus was not preempted by HOLA. (Hussey-Head v. World Savings & Loan Assn., supra, 111 Cal.App.4th at pp. 780-783 [holding that Civ. Code, § 1785.1 et seq., did no more than recognize the fact that creditors voluntarily report credit information to credit reporting agencies].)