National Association of Industrial Bankers v. Weiser - En Banc Rehearing on DIDMCA Opt-Out

JD Supra Finance & Banking

Published April 7th, 2026

Detected April 7th, 2026

Summary

The Tenth Circuit granted en banc rehearing in National Association of Industrial Bankers v. Weiser, vacating its November 2025 panel decision that had allowed Colorado to apply its Uniform Consumer Credit Code interest-rate caps to loans made by out-of-state, state-chartered banks to Colorado borrowers. The court will reconsider whether DIDMCA § 525's phrase 'loans made in such State' allows opt-out states to regulate out-of-state bank lending to their residents. Supplemental briefing has been ordered on preemption and interpretive issues.

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What changed

The en banc order vacates the prior panel judgment that had narrowed DIDMCA preemption and allowed Colorado to apply its UCCC rate caps to loans from out-of-state, state-chartered banks. The en banc court will address whether 'loans made in such State' in § 525 includes loans where either the lender or borrower is located in the opt-out state, and how DIDMCA's enactment history informs this interpretation. The court's prior holding that banks have an equitable cause of action under Ex parte Young remains intact.

For banks and financial institutions operating across Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, the scope of state rate cap preemption remains unsettled pending en banc resolution. Out-of-state banks making loans to Colorado residents face continued uncertainty about whether those loans may be subject to Colorado's UCCC rate caps. Financial institutions should monitor this proceeding closely, as a ruling affirming Colorado's opt-out authority could significantly impact bank lending practices and product structures in opt-out states.

What to do next

Monitor Tenth Circuit en banc proceedings for guidance on DIDMCA opt-out scope
Review state interest-rate cap applicability to out-of-state bank loans in Tenth Circuit jurisdictions
Assess potential exposure to UCCC rate cap enforcement in Colorado pending resolution

Source document (simplified)

April 7, 2026

Tenth Circuit Grants En Banc Rehearing in Colorado DIDMCA Opt-Out Case, Vacating Prior Panel Decision

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The Tenth Circuit has granted rehearing en banc in National Association of Industrial Bankers v. Weiser, vacating its November 10, 2025, panel decision that had allowed Colorado to apply its Uniform Consumer Credit Code (UCCC) interest-rate caps to loans made by out-of-state, state-chartered banks to Colorado borrowers. The court’s prior judgment is vacated, issuance of the mandate is stayed, and the case is reopened for en banc consideration. As a result, the panel opinion narrowing DIDMCA preemption no longer reflects the current state of the law in the Tenth Circuit, and the scope of Colorado’s opt-out authority is once again unsettled.

Background

As discussed in our prior post (here), Colorado enacted H.B. 23‑1229 to opt out of §§ 521–523 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) and to apply UCCC rate caps to certain consumer loans. In July 2024, the district court preliminarily enjoined Colorado from enforcing those caps against loans originated by out-of-state, state-chartered banks, accepting industry arguments that a loan is “made” where the bank is located or performs non‑ministerial functions, rather than where the borrower resides. On November 10, 2025, a Tenth Circuit panel reversed and held that the phrase “loans made in such State” in § 525 includes loans in which either the lender or the borrower is located in the opt-out state. On that reading, Colorado’s opt-out removed § 1831d’s preemptive effect for loans from out-of-state, state-chartered banks to Colorado residents. Today’s en banc order wipes that panel holding off the books.

The En Banc Order

In its per curiam order, the Tenth Circuit grants the plaintiffs’ petition for rehearing en banc, vacates the November 2025 panel judgment, stays issuance of the mandate, and reopens the appeal. The order also grants pending motions for leave to file amicus briefs and provides that all previously submitted amicus briefs in connection with the rehearing request will be filed as of their original submission dates. Importantly, the court limits the scope of en banc review to the interpretive and preemption issues raised in the petition and in the court’s own supplemental briefing questions. The en banc court will not revisit the panel’s holding that the banks have a valid equitable cause of action under Ex parte Young; that aspect of the panel’s decision remains intact.

Supplemental Briefing

The court directs the parties to submit supplemental briefs addressing a series of questions focused on the meaning of DIDMCA § 525’s phrase “loans made in such State” and on the preemption framework. The en banc court asks whether “loans made in such State” refers to an executed loan and encompasses loans in which either the lender or the borrower is located in the opt-out state, as the panel held, and how the reference in § 521 to “the State … where the bank is located” should inform the interpretation of § 525. The court further asks how DIDMCA’s enactment history and regulatory guidance bear on the meaning of “loans made in such State,” whether that phrase is ambiguous, and whether a presumption against preemption applies in this case. The order sets a schedule for supplemental opening, response, and reply briefs and expressly encourages additional amicus participation.

Practical Implications

With the panel opinion vacated, there is no longer a precedential Tenth Circuit ruling authoritatively resolving whether Colorado may apply its UCCC rate caps to loans from out-of-state, state-chartered banks to Colorado borrowers notwithstanding DIDMCA’s rate authority. State-chartered banks that lend across state lines into Colorado face renewed uncertainty about applicable rate limits and the scope of federal preemption. National banks remain governed by National Bank Act § 85, which has no opt-out, but parity concerns between state and national charters remain central to the litigation and will likely feature prominently in the en banc court’s analysis. The ultimate en banc decision is poised to become a key precedent on DIDMCA opt-outs, the meaning of where a loan is “made” for interest-rate purposes, and the reach of state rate caps in interstate lending.

We will continue to monitor the en banc proceedings and will provide additional updates as developments occur.

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Tenth Circuit Narrows DIDMCA Opt‑Out Preemption: Colorado May Apply Its Rate Caps to Loans From State Chartered Banks to Borrowers Located in Colorado

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