The 10^th Circuit’s Decision in National Association of Industrial Bankers v. Weiser: Understanding Colorado’s Opt-Out From Section 27 of the FDIA and Its Broader Implications

On November 10, 2025, the U.S. Court of Appeals for the Tenth Circuit issued a 2–1 decision in National Association of Industrial Bankers v. Weiser, which addressed Colorado’s 2023 opt-out from Section 27 of the Federal Deposit Insurance Act (FDIA) pursuant to the opt-out right conferred by Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA). In the court’s important decision of first impression, it concluded that a loan is “made in” an opt-out state if either the lender or the borrower is located there. As a result, Colorado’s opt-out from Section 27 strips out-of-state state banks of their usual ability under Section 27 to “export” their home-state interest rates to Colorado borrowers, and instead they must comply with Colorado usury ceilings.

The decision does not affect national banks, which retain full rate-exportation authority under the National Bank Act. But it has major implications for state banks and their nonbank fintech partners that lend to consumers in opt-out states.

Judge Rossman’s dissent argued that the majority’s reading conflicts with the text and purpose of Section 525 of DIDMCA, which she viewed as allowing opt-outs only for loans made within a state by in-state banks. Her opinion warned that the majority’s approach undermines the interest rate parity between state and national banks intended by Congress in Section 27 of the FDIA and invites regulatory fragmentation—quoting with approval from the amicus brief we filed for the American Bankers Association, Consumer Bankers Association and Bank Policy Institute.  The plaintiff trade groups will be filing a Petition for Rehearing by the entire Tenth Circuit on December 9. Until that rehearing petition is decided, the trial court’s injunction preventing enforcement of Colorado’s opt-out statute will remain in effect.

Topics We Will Cover

Our expert panel will unpack the ruling and its practical effects, including:

• Status of the injunction: How long will the district court’s bar on enforcement remain?

• Scope: Which lenders and loan programs are covered?

• Next steps: Prospects for en banc rehearing after a strong dissent (petitions due Dec. 9; amicus briefs due Dec. 16).

• Plaintiffs’ arguments and expected amicus briefs.

• Other opt-out jurisdictions: Currently only Iowa and Puerto Rico, but other states have previously considered proposed opt-out bills.

• If the decision stands:

  • Will lending options for Colorado residents shrink?

  • Will more states pursue opt-outs?

  • Will state banks consider converting to national charters?

  • Will fintechs shift partnerships to national banks?

  • How this case fits with the Cantero, Conti, and Kivett cases dealing with National Bank Act preemption of state non-usury laws

We will be joined by special guest Andrew Kushner, Senior Policy Counselor, Center for Responsible Lending.

ADDITIONAL INFORMATION

This program is anticipated to be approved for 1.5 CLE credits in CA, NV, NY, & PA; and 1.8 NJ. Uniform Certificates of Attendance will also be provided for the purpose of seeking credit in other jurisdictions.

11:45 AM - 12:00 PM | Log in
12:00 PM - 1:30 PM | Program

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