Plaintiffs Tell Tenth Circuit En Banc Court That Colorado’s Opt-Out Law Cannot Reach Loans Made by Out-of-State State-Chartered Banks

By Alan S. Kaplinsky, Burt M. Rublin & Ronald K. Vaske on June 8, 2026

The plaintiffs-appellees in National Association of Industrial Bankers v. Weiser have filed their supplemental en banc brief in the Tenth Circuit, urging the full court to reject the panel majority’s interpretation of Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) and affirm the district court’s preliminary injunction against Colorado’s opt-out statute.

The brief responds to six questions posed by the en banc court and advances a straightforward proposition: under DIDMCA, a state may opt out of Section 521 federal interest-rate and exportation authority only with respect to loans made by state banks located in the opt-out state. Colorado therefore may regulate loans made by Colorado-chartered banks, but it may not apply its interest-rate restrictions to loans made by state-chartered banks located in other states.

Plaintiffs Frame the Case as One About Competitive Equality

The plaintiffs begin by emphasizing DIDMCA’s core purpose. Congress enacted Section 521 of DIDMCA to place FDIC-insured state-chartered banks on equal competitive footing with national banks. Prior to DIDMCA, national banks enjoyed the right under Section 85 of the National Bank Act to charge either their home state interest rates or 1% above the Federal Reserve discount rate, whichever was higher. Section 521 of DIDMCA extended comparable authority to state-chartered banks.

According to the plaintiffs, Colorado’s interpretation would effectively eliminate that parity. National banks would remain free to lend to Colorado borrowers at rates authorized by their home states, while out-of-state state-chartered banks would be subject to Colorado’s usury restrictions. The plaintiffs argue that Congress enacted DIDMCA specifically to avoid such disparate treatment.

“Loans Made” Does Not Mean “Loans Executed”

One of the principal issues before the en banc court concerns the meaning of the phrase “loans made in such State” in Section 525, DIDMCA’s opt-out provision.

The plaintiffs argue that the panel majority incorrectly transformed the phrase “loans made” into “loans executed.” According to the brief, Congress never used the term “executed” in Section 525, unlike a different banking statute amending the National Housing Act enacted by the same Congress three months earlier that allowed a state to override preemption with respect to a mortgage loan “made or executed” in that state. Plaintiffs argue that “Congress’s decision not to use the word ‘executed’ in Section 525 shows that the majority erred by reading that word into the statute.”

Instead, the plaintiffs contend that a loan is made where the bank performs the key lending activities that create the loan relationship, culminating in the disbursement of funds. In their view, the majority improperly shifted the analysis from the lender’s actions to the location of either party to the transaction.

The plaintiffs maintain that Section 525 focuses on the bank that makes the loan, not on where the borrower resides. The District Court reasoned that only lenders (in this case, the bank) make loans. Borrowers do not make loans. Borrowers only obtain or receive loans. That was the principle basis upon which the District Court enjoined the Colorado Attorney General from enforcing the Colorado opt-out statute. This injunction remains in effect today.

Section 521 and Section 525 Must Be Read Together

The plaintiffs also argue that the panel majority improperly interpreted Sections 521 and 525 as though they operate independently.

Section 521 authorizes a state-chartered bank to charge interest at the rate permitted by the state where the bank is located. Section 525 permits a state to opt out of that regime with respect to “loans made in such State.”

According to the plaintiffs, the two provisions should be interpreted consistently. If Section 521 focuses on the location of the bank, then Section 525’s reference to “loans made in such State” likewise should be understood as referring to loans made by banks located in that state.

The plaintiffs argue that the majority’s interpretation creates an unwarranted disconnect between the two provisions and effectively rewrites the statute.

Legislative History Supports a Lender-Focused Reading

The plaintiffs devote substantial attention to DIDMCA’s legislative history.

They contend that Congress used similar “loans made” language in a series of federal interest-rate preemption statutes enacted during the 1970s and early 1980s. In each instance, Congress focused on the location of the lender rather than the location of the borrower.

According to the plaintiffs, none of these statutes was designed to allow one state to dictate the interest rates that state banks chartered in other states could charge. Rather, Congress sought to address competitive disparities among financial institutions while preserving a uniform framework for interstate lending.

The plaintiffs therefore argue that Colorado’s interpretation is inconsistent with the broader statutory framework from which DIDMCA emerged.

Regulatory Guidance Supports the District Court’s Interpretation

The brief also relies heavily on decades of federal regulatory guidance.

According to the plaintiffs, both the FDIC and the OCC have long treated the location of a bank’s loan-making functions as the determining factor in identifying where a loan is made. The relevant inquiry focuses on where the bank performs key non-ministerial lending activities, such as approving credit, communicating lending decisions, and disbursing funds.

The plaintiffs contend that this longstanding regulatory approach confirms that the borrower’s location is not determinative and that the district court correctly relied on that body of guidance when issuing the preliminary injunction.

Notably, these arguments now align with the positions recently advanced by both the FDIC and the OCC in their own amicus briefs supporting the plaintiffs.

The Statute Is Not Ambiguous

The plaintiffs also reject the notion that Section 525 is ambiguous.

They argue that the text, statutory context, purpose, legislative history, and regulatory interpretations all point to a single conclusion: “loans made in such State” refers to loans made by banks located in the opt-out state.

Because the plaintiffs view the statute as unambiguous, they contend there is no basis for adopting Colorado’s broader interpretation.

No Presumption Against Preemption Applies

Finally, the plaintiffs challenge the panel majority’s reliance on a presumption against preemption.

The brief emphasizes that Section 521 of DIDMCA contains an express preemption provision. When Congress expressly preempts state law, courts do not apply a presumption against preemption or require a heightened clear-statement rule.

The plaintiffs therefore argue that the majority erred by resolving perceived ambiguity in favor of state regulation rather than applying the statute’s express language.

Plaintiffs’ Strong Amicus Support in Tenth Circuit

The plaintiff trade associations received substantial support from a broad and diverse group of amici on June 4, 2026. The amicus filings underscore the far-reaching implications of the case for the banking system, federal banking regulation, interstate lending, and consumer access to credit.

The following amici filed briefs in support of the plaintiffs:

The Federal Deposit Insurance Corporation (FDIC);
The Office of the Comptroller of the Currency (OCC);
The American Bankers Association, Consumer Bankers Association, Bank Policy Institute, America’s Credit Unions, and fifty state bankers associations;
Twenty-one state Attorneys General;
Professors Todd Zywicki and Thomas Miller, Jr. and Center for Individual Freedom; and
The United States Chamber of Commerce.

The breadth of this support is noteworthy. The amici include the two federal banking agencies charged with administering and enforcing the federal banking laws at issue, a coalition representing virtually every segment of the banking industry, more than twenty state chief legal officers, leading academic experts on consumer finance and banking law, and the nation’s largest business organization.

Collectively, the amicus briefs argue that Colorado’s interpretation of Section 521 of DIDMCA conflicts with the statute’s text, history, and purpose; threatens the uniform operation of federal banking law; creates significant uncertainty for interstate lending markets; and would adversely affect the availability and cost of credit for consumers and small businesses.

Links to the amicus briefs supporting plaintiffs:

Next Steps

On June 4, 2026, the State of Colorado requested an extension of time to file its opposition brief from June 29 until July 8. The Plaintiffs’ reply brief will be due to be filed 14 days after the State of Colorado files its opposition brief. Oral argument has been scheduled for August 18, 2026.