In a notice of “Intent to Make Preemption Determination under the Truth in Lending Act (Regulation Z),” the CFPB announced that it is seeking comments on its preliminary determinations that the Truth in Lending Act (TILA) does not preempt certain provisions of the New York Commercial Finance Disclosure Law (CFDL) or the commercial financing laws of California, Utah, and Virginia. … Continue Reading

The CFPB has issued an interpretive rule on the scope of the Fair Credit Reporting Act’s preemption provisions.  The rule’s narrow reading of those provisions appears intended to encourage and support state legislative efforts to enact laws targeting credit reporting issues of concern to the CFPB, such as the reporting of medical debt.… Continue Reading

A Pennsylvania federal district court recently held that Regulation J did not completely preempt state law claims related to a wire transfer, and thus did not fall under the “complete preemption” exception to the “well-pleaded complaint rule.”  Reg J deals with the collection of checks and other items by Federal Reserve Banks and fund transfers through Fedwire.… Continue Reading

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 taken a number of steps in recent months to reverse Trump Administration policies that hindered state oversight of federal student loan servicers. … Continue Reading

For the second time in two years, the U.S. Supreme Court is being asked to decide whether the Federal Arbitration Act (FAA) preempts California law (the “McGill Rule”) which invalidates arbitration agreements that waive the right of consumers to seek public injunctive relief.  This time, however, there are changed circumstances that increase the odds that the Court will grant review of this critically important arbitration issue.… Continue Reading

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 matter filed against them in January 2021 by the Maryland Department of Labor, Office of the Commissioner of Financial Regulation (OCFR) alleging that the Bank and Atlanticus/Fortiva violated Maryland law by failing to hold required Maryland lending and other licenses. … Continue Reading

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 OCC’s opposition to their summary judgment motion. … Continue Reading

The Chief Counsel of the Office of the Comptroller of the Currency has issued Interpretive Letter 1173, addressing national bank and federal savings association preemption of state law under the Dodd-Frank Act.

The Interpretive Letter clarifies that the special Dodd-Frank preemption requirements for “preemption determinations” are limited as follows:

  • “Preemption determinations” are confined to “affirmative conclusion[s] by the OCC that federal law preempts a state consumer financial law.” 
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The parties in Petersen v. Chase Card Funding, LLC and Cohen v. Capital One Funding, LLC, have filed Stipulations agreeing to the withdrawal with prejudice of the plaintiffs’ appeals to the Second Circuit from the district courts’ decisions holding that the National Bank Act (NBA) preempts their claims that the interest charged on credit card receivables assigned to affiliated securitization trusts violated New York usury law.… Continue Reading

A Maine federal district court ruled that that two 2019 amendments to Maine’s credit reporting law are preempted by the federal Fair Credit Reporting Act and granted the motion for judgment filed by the plaintiff, the Consumer Data Industry Association (CDIA).

One of the amendments prohibited a consumer reporting agency (CRA) from reporting medical debt on a consumer’s credit report until a delinquency was at least 180 days old. … Continue Reading