On June 4, 2026, the American Bankers Association, Bank Policy Institute, Consumer Bankers Association, America’s Credit Unions, and 52 state bankers associations filed a supplemental amicus brief supporting the plaintiffs in the en banc proceeding pending before the U.S. Court of Appeals for the Tenth Circuit in National Association of Industrial Bankers v. Weiser. Ballard Spahr attorneys Burt Rublin, Alan Kaplinsky, and Ron Vaske represent the amici.
Yesterday, we published a blog about the plaintiffs’ supplemental brief filed by them recently in the Tenth Circuit.
The case involves a challenge to Colorado’s effort to apply its state interest-rate limitations to loans made by state-chartered banks located outside Colorado. The litigation concerns how to interpret Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), which allows a state to opt-out of Section 521 of DIDMCA “with respect to loans made in such State.” The question is whether a loan is “made in” the state where the bank is located and performs its lending functions, as the District Court held and the banks argued, or whether it is “made in” both the bank’s state and the borrower’s state, as argued by Colorado and its amici.
The supplemental amicus brief was filed after the Tenth Circuit granted rehearing en banc and vacated an earlier panel decision. The brief focuses on statutory text, legislative history, practical consequences, and longstanding FDIC interpretations of Section 525 supporting the conclusion that a loan is “made” only in the state where the lender performs its lending functions, not also in the state where the borrower happens to reside or be located when the loan is made.
Congress Chose the Word “Made,” Not “Made or Executed”
A central argument in the amicus brief is that Congress deliberately used the phrase “loans made in such State” in Section 525 of DIDMCA. The brief notes that the same Congress, only three months earlier, used broader language in a different preemption statute relating to FHA loans, referring to loans “made or executed” in a state.
According to the amici, this distinction is critical. If Congress intended Section 525 to apply whenever a borrower executed loan documents in an opt-out state, it knew how to say so. Instead, Congress chose the narrower term “made,” which historically has been understood as referring to the lender’s activities rather than the borrower’s location. Only a lender “makes” a loan.
The brief argues that accepted principles of statutory construction require courts to give meaning to Congress’s different word choices and not treat “made” and “executed” as interchangeable.
DIDMCA Was Designed to Create Parity Between State Banks and National Banks
The amici also emphasize the historical context in which DIDMCA was enacted. Congress adopted Sections 521 through 523 of DIDMCA to place state-chartered depository institutions on equal footing with national banks.
DIDMCA was enacted in early 1980 during a period of rampant inflation and soaring interest rates. The Federal Reserve discount rate was higher than the interest rate ceilings in various states. As a result, many state-chartered institutions were constrained by those low state usury ceilings while national banks could charge higher rates under Section 85 of the National Bank Act, which allows a national bank to charge either its home state’s rates or 1% over the discount rate. Congress addressed that competitive imbalance by incorporating the language of Section 85 of the National Bank Act into Sections 521-523 of DIDMCA, thus giving federally insured state depository institutions the same federal interest rate authority as national banks, namely, the right to charge their home states’ rates or 1% above the discount rate, whichever is higher.
The brief argues that Colorado’s interpretation of Section 525 would undermine that objective by allowing opt-out states to restrict out-of-state state banks while leaving national banks unaffected. Such a result would create the very disparity Congress sought to eliminate.
Borrower-Location Rules Would Create Significant Operational Problems
The brief devotes substantial attention to the practical consequences of holding that a loan is made not only in the bank’s state but also wherever the borrower happens to be located when the loan is made.
According to the amici, modern interstate lending would become extraordinarily difficult to administer if interest-rate authority depended on where a borrower happened to be located at the moment credit was extended. Credit card issuers and online lenders would be forced to determine and track a borrower’s physical location for every transaction.
The brief provides numerous examples. A borrower might travel between states and use a credit card in multiple jurisdictions. An online loan application could be submitted in one state and approved in another. Recurring transactions could occur without either the merchant or the lender knowing where the borrower is located.
The amici argue that such a regime would require lenders to apply multiple interest-rate structures within a single account and would create what they describe as an “administrative morass” inconsistent with Congress’s intent and the realities of modern interstate banking.
The brief also echoes concerns expressed by Judge Rossman in her dissent from the now-vacated panel opinion, which warned that a borrower-location approach would be difficult to reconcile with today’s interstate and online banking environment.
The FDIC Has Long Taken the Position That An Opt-Out State Cannot Limit the Interest Rates Charged by Out-of-State State Banks
The amici further point to FDIC interpretations of Section 525 dating back to 1983. According to the brief, the FDIC has long taken the position that a state’s decision to opt out of DIDMCA does not affect state-chartered banks located in other states.
The brief cites a 1983 FDIC interpretive letter stating that state banks may continue to rely on the interest-rate authority of their home states when lending to residents of states that have exercised the opt-out right. It also relies on an FDIC amicus brief filed in 1992 in the First Circuit’s Greenwood Trust litigation, where the agency once again argued that Section 525 does not grant opt-out states extraterritorial authority over loans made by state banks chartered elsewhere.
According to the amici, these longstanding FDIC interpretations reinforce the conclusion that Section 525 applies only to loans made by institutions located in the opt-out state.
Looking Ahead
The Tenth Circuit’s en banc decision will have significant implications for interstate lending programs conducted by state-chartered banks and credit unions. If Colorado’s interpretation were adopted, lenders could face a patchwork of state-specific interest-rate restrictions tied to borrower location, potentially reshaping interstate consumer lending markets.
The banking and credit union trade associations urge the court to affirm the district court’s ruling and hold that a loan is “made” only in the state where the lender performs its lending functions. Such a ruling, they argue, would be consistent with DIDMCA’s text, legislative history, FDIC interpretations, and Congress’s goal of maintaining parity between state-chartered institutions and national banks.