FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QUICKEN LOANS, INC., a Michigan 

corporation,

Plaintiff-Appellant, No. 04-16244

v. D.C. No.

WILLIAM P. WOOD, in his official  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. D.C. No.

WILLIAM P. WOOD, in his official  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
Before: Alfred T. Goodwin, Stephen Reinhardt, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Goodwin

5594 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

5596 QUICKEN LOANS, INC. v. WOOD
enforce previous versions of California’s per diem loan interest statutes. The district court held that these laws were preempted 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 DIDMCA. 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 alternative 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’ purposes in enacting the Parity Act. The per diem statutes therefore 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 residential mortgage lending in California by the California Department 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 complete the lending process through independent

escrow companies . . . . Quicken Loans deposits the

QUICKEN LOANS, INC. v. WOOD 5597
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 transaction 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 recordation 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) ‘recordation’ of the deed of trust as interpreted by the Commissioner.” During these delays Quicken assesses interest on the

disbursed loans. 

Because Quicken is licensed under the California Residential 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 payments 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 disbursement, these amendments did not become effective until

5598 QUICKEN LOANS, INC. v. WOOD
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 letter 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 detailing 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 DIDMCA and the Parity Act preempt the per diem statutes, and

that the per diem statutes effected an unlawful taking in violation 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 Quicken’s takings claim for lack of ripeness, and granted the Commissioner’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 Commissioner 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

QUICKEN LOANS, INC. v. WOOD 5599
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 substantive 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 “increasingly volatile and dynamic changes in interest rates ha[d]

seriously impared [sic] the ability of housing creditors to provide 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 authorizing federally chartered depository institutions to engage in

alternative mortgage financing.” Id. Congress enacted the Parity Act “to eliminate the discriminatory impact that those regulations have upon nonfederally chartered housing creditors.”

Id. § 3801(b). The Parity Act authorizes nonfederally chartered housing creditors to “make, purchase, and enforce alternative 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

5600 QUICKEN LOANS, INC. v. WOOD
may be made by a housing creditor in accordance with this

section, notwithstanding any State constitution, law, or regulation.” Id. § 3803(c). 

Quicken asserts that the district court erred in holding that

the Parity Act does not preempt the California per diem statutes 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 chartered lenders. 

The Supremacy Clause provides that federal laws “shall be

the supreme Law of the Land; . . . any Thing in the Constitution 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 purpose 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 preempted 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 execution 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. 

QUICKEN LOANS, INC. v. WOOD 5601
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 inapplicable 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 adjustments 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 specifying the percentage or dollar change in the payment 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 borrower 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 conflicts 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:

5602 QUICKEN LOANS, INC. v. WOOD
the arbitrary date of late recording.” This amounts to a conflict argument invoking physical impossibility. The Commissioner 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 regulation 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 Commissioner 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 adjustment 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 preempts 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 discriminatory impact that those regulations [authorizing 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

QUICKEN LOANS, INC. v. WOOD 5603
by authorizing all housing creditors to make, purchase, 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, notwithstanding 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 language 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 alternative mortgage transactions so as to create federal jurisdiction.”); 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 preempt all state laws governing AMTs.”); Black v. Fin. Freedom 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 requirements 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. 

5604 QUICKEN LOANS, INC. v. WOOD
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 accomplishment and execution of the full purposes and objectives of

Congress.’ ” Gade, 505 U.S. at 98 (quoting Hines v. Davidowitz, 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 preemption “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 preemptive 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 regulation. 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 complete preemption). 

We must therefore determine the scope of the clause: “notwithstanding any State constitution, law, or regulation.” 12

QUICKEN LOANS, INC. v. WOOD 5605
U.S.C. § 3803(c). Other courts asked to rule on the preemptive 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); Glukowsky 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 mortgage 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 Congress.” Black, 112 Cal. Rptr. 2d at 456. That court rejected the

argument that “the goal of the Parity Act is national uniformity 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 uniform 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’ purpose required preemption of the state laws at issue because

the state claims did “not seek to prohibit or impede the making 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 federal regulation which the OTS has identified as applicable to

non-federally chartered housing creditors. The per diem statutes also do not prohibit the making of alternative mortgage

5606 QUICKEN LOANS, INC. v. WOOD
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 alternative mortgage transactions. 

California’s per diem statutes apply to mortgages on real

property, and do not distinguish between alternative mortgages 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 nonfederally chartered creditors. However, Congress has not delegated 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 chartered housing creditors. Indeed, § 3801 suggests that the Parity 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 authorizing all housing creditors to make, purchase, and enforce

alternative mortgage transactions so long as the transactions

are in conformity with OTS regulations. 

QUICKEN LOANS, INC. v. WOOD 5607
[9] The per diem statutes do not apply exclusively to alternative mortgages, but rather are statutes of general applicability. 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 making, purchasing, or enforcing alternative mortgage transactions; and do not inhibit the making, purchasing, or enforcing

of alternative mortgage transactions per se, they are not preempted by the Parity Act. 

IV. Takings Clause

Quicken argues that the district court erred when it dismissed 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.” Williamson 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.

5608 QUICKEN LOANS, INC. v. WOOD
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 inadequate.” [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 adequate 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: 

QUICKEN LOANS, INC. v. WOOD 5609
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 takings 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 Commissioner 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

5610 QUICKEN LOANS, INC. v. WOOD
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 takings 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 Commissioner’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 Complaint. 

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 injunction on the DIDMCA claim, granting summary judgment on

the Parity Act claim, and dismissing the takings claim. 

QUICKEN LOANS, INC. v. WOOD 5611
Vacated in part, affirmed in part, and remanded. Commissioner to recover costs on appeal. 

5612 QUICKEN LOANS, INC. v. WOOD