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As we reported previously, a petition for rehearing en banc was filed by the plaintiff bank trade associations in National Association of Industrial Bankers v. Weiser. In that case, the panel's 2-1 decision held that a loan is "made" for purposes of the opt-out provision in Section 525 of DIDMCA in both the state where the bank is located and the borrower's state, meaning that Colorado interest rate limits will apply to loans made to Colorado residents by out-of-state state-chartered depository institutions.
The Tenth Circuit directed Colorado to file a response to the rehearing petition. In its response, Colorado argued that the plaintiffs' claim of a circuit split with Jessup v. Pulaski Bank, 327 F.3d 682 (8th Cir. 2003) was unfounded. Colorado asserted that the panel decision correctly distinguished Jessup on the basis that it involved a different statute with a different purpose, and that the Jessup opinion was based entirely on Chevron deference to an OCC opinion letter, which would now be improper in light of Loper Bright.
Colorado also argued that, contrary to the plaintiffs' contentions in their rehearing petition, the panel properly applied Supreme Court precedents on express preemption and correctly found that the text of Section 525 of DIDMCA is unambiguous.
In addition, Colorado argued that rehearing is reserved for "extraordinary" cases, and this appeal "concerns a routine issue of statutory interpretation." Colorado further asserted that the opinion will not threaten the dual banking system, and contended that Iowa's opt-out of DIDMCA over 40 years ago has not caused any significant problems. Also, Colorado asserted that most loans by out-of-state state chartered banks to Colorado borrowers fall below Colorado's interest rate caps, and therefore "[i]t is only a few state-chartered banks who partner with high cost fintech lenders" who will be affected by the panel's decision.
Finally, Colorado argued that the various policy arguments raised by the amici curiae supporting the rehearing petition (namely, the FDIC, OCC, ABA and Bank Policy Institute, and 20 States) should be addressed to Congress.
It is noteworthy that none of the various amici curiae who supported Colorado's position at the merits briefing stage filed briefs in opposition to rehearing.
There is no way of knowing when the Tenth Circuit will decide the rehearing petition. In the meantime, the issuance of the mandate is stayed, so the trial court's injunction against enforcement of the opt-out statute still remains in effect.
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