Banking and Finance Law Daily Wrap Up, INTEREST-USURY—10th Cir.: Colorado interest rate opt-out dispute rehearing en banc granted, (Apr 3, 2026)

By Sherri M. Schroeder, J.D.

The parties were ordered to file supplemental briefs on various aspects of the phrase ‘loans made in such State’ contained in Section 525 of DIDMAC.

In another twist in a matter of first impression concerning the phrase “loans made in such State” contained in Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMAC), the U.S Court of Appeals for the Tenth Circuit has granted a motion for rehearing en banc. In November 2025, holding that the plain language of a federal statute permitting states to opt-out of interest rate caps encompassed both the lender’s location and the borrower’s location, the Tenth Circuit court reversed an injunction blocking Colorado from enforcing its interest-rate cap on loans from state banks to Colorado borrowers (see Banking and Finance Law Daily, Nov. 12, 2025). After the Tenth Circuit circulated the Petition for Rehearing En Banc filed by the National Association of Industrial Bankers, et al., and the Response to Petition for Rehearing En Banc filed by Philip J. Weiser in his official capacity as Attorney General of the State of Colorado, et al. (see Banking and Finance Law Daily, Jan. 23, 2026), to all non-recused active judges of the court, a majority voted to rehear the matter en banc. Encouraging Amicus participation, the court ordered the parties to file supplemental briefs addressing certain questions concerning the phrase “loans made in such State” in Section 525 of DIDMCA (National Association of Industrial Bankers v. Weisner, No. 24-1293 (10th Cir. Apr. 2, 2026)).

Background. The National Association of Industrial Bankers, American Financial Services Association, and American Fintech Council trade associations sought preliminary injunctive relief to stop Colorado from enforcing its state lower interest-rate caps with respect to loans by lenders not located in Colorado. Ordinarily, the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA), 12 U.S.C. §1831d(a), sets a national standard for state-chartered bank loan interest rates and preempts any lower interest rate caps that states may impose. However, Colorado exercised its § 1831d right to opt-out with respect to “loans made in” Colorado. The trade associations argued that Colorado attempted to exceed the scope of its opt-out authority by interpreting “loans made in” Colorado to include all loans made to borrowers (see Banking and Finance Law Daily, Jun. 21, 2024). The district court agreed with the bank trade associations and granted a preliminary injunction.

Colorado’s Attorney General and Administrator of the Colorado Uniform Consumer Credit Code appealed in their official capacities. On appeal, the Colorado defendants challenged the preliminary injunction on three grounds: (1) DIDA provided no cause of action for the banks to file suit; (2) the opt-out for “loans made in such State” includes loans in which the borrower, but not the lender, is located in Colorado; and (3) the district court incorrectly balanced the harms to the parties.

Applying abuse-of-discretion review, the Tenth Circuit reversed, holding that “loans made in such State” referred to loans in which either the lender or the borrower is located in the opt-out state. Because Colorado opted out of § 1831d, DIDA no longer preempted Colorado’s interest rate caps for loans from out-of-state banks to Colorado borrowers. Therefore, there was no basis for the preliminary injunction enjoining the Colorado defendants from enforcing Colorado’s interest-rate caps.

Rehearing. Noting that the majority of judges polled voted to rehear the matter en banc, the court granted the petition for rehearing, vacated the court’s Nov. 10, 2025, judgment, stayed the issuance of the mandate, and reopened the matter. The court then ordered the parties to file supplemental briefs addressing the following questions:

• Does the phrase “loans made in such State” in DIDMCA Section 525 refer to “an executed loan” and encompass “loans in which either the lender or the borrower is located in the opt-out state”?

• How, if at all, should the reference to “the State . . . where the bank is located” contained in DIDMCA Section 521 inform the meaning of “loans made in such State” in Section 525?

• How, if at all, is the enactment history of DIDMCA instructive to interpreting the phrase “loans made in such State”?

• How, if at all, is the regulatory guidance instructive to interpreting the phrase “loans made in such State”?

• Is the phrase “loans made in such State” ambiguous?

• Does a presumption against preemption apply in this case?

Limiting the scope of the en banc proceedings to the issues raised in the Petition and the supplemental briefing questions identified above, the Order specifically stated the en banc court will not reconsider whether the banks have a valid cause of action for a claim in equity under Ex parte Young, 209 U.S. 123 (1908).

Finally, the court granted the pending motions for leave to file amicus briefs, noting that all amicus briefs submitted in connection with the court’s consideration of whether to grant en banc rehearing will be filed as of the date submitted. The court concluded with, “Amicus participation is encouraged.”

Companies: National Association of Industrial Bankers; American Financial Services Association

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