Preemption

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The OCC’s true lender rule was intended to create a bright line test for when a national bank or federal savings association should be considered the “true lender” in the context of third party partnerships but Congress overturned the rule.  After reviewing the relevant background, we examine the Congressional override’s implications for future federal true…

The U.S. Department of Education has issued a new interpretation “to revise and clarify its position on the legality of State laws and regulations that govern various aspects of the servicing of Federal student loans.”  The new interpretation revokes and supersedes the ED’s 2018 preemption determination.  It was not unexpected, as the ED has…

The state attorneys general have filed their opposition to the FDIC’s motion for summary judgment in their lawsuit to set aside the FDIC’s “Madden-fix” rule.  The filing also includes the AGs’ reply to the FDIC’s opposition to their summary judgment motion.

The lawsuit is pending before the same California federal district court judge…

On June 11, the American Bankers Association and the Consumer Bankers Association, represented by Ballard Spahr, filed an amicus brief in support of a petition for certiorari asking the Supreme Court to review the Ninth Circuit’s ruling in HRB Tax Group, Inc. v. Snarr that the Federal Arbitration Act (FAA) does not preempt California’s McGill…

The U.S. Court of Appeals for the Second Circuit has ruled that the lawsuit filed by the New York Department of Financial Services (DFS) seeking to block the OCC’s issuance of special purpose national bank (SPNB) charters to non-depository fintech companies should be dismissed for lack of Article III standing.  In December 2017, the DFS’s…

The FDIC has filed a motion for summary judgment in the lawsuit filed by the Attorney Generals of six states and District of Columbia to set aside the FDIC’s “Madden-fix” rule.  The filing also includes the FDIC’s opposition to the summary judgment motion filed by the AGs.

The lawsuit is pending before…

A Maryland administrative action recently removed to the state’s federal district court illustrates how Maryland law continues to present challenges for the bank partner structure used by many lenders.

Last month, Bank of Missouri, an FDIC-insured, Missouri state-chartered bank, and Atlanticus Service Corporation and Fortiva Financial, LLC, the Bank’s non-bank service providers, removed an administrative…

The OCC has filed a reply in support of its cross-motion for summary judgment in the lawsuit filed by state AGs to enjoin the OCC’s final rule (Rule) purporting to override the Second Circuit’s Madden decision as to national banks and federal savings associations.  The filing of the OCC’s reply concludes the briefing on the…

The Attorneys General of California, Illinois, and New York have filed their opposition to the OCC’s cross-motion for summary judgment in their lawsuit to enjoin the OCC’s final rule (Rule) purporting to override the Second Circuit’s Madden decision as to national banks and federal savings associations.  In their filing, the AGs also reply to the…

On January 5, 2021, the Attorneys General of New York, California, Colorado, the District of Columbia, Massachusetts, Minnesota, New Jersey, and North Carolina filed a voluminous Complaint in federal district court for the Southern District of New York against the OCC and Acting Comptroller of the Currency Brian Brooks, seeking to set aside the final…