USA – COLORADO Trends and Developments Contributed by: Mike Kilgarriff and Catherine Warren, Buchalter LLP
fined itself to policing the terms on which products are offered; it has also shown increasing interest in the systems and legal structures that make those prod - ucts possible in the first place. Colorado is testing the legal architecture of bank– fintech lending Colorado’s role in the law of bank–fintech lending did not begin with its recent litigation under DIDMCA. It was already a significant player in this area by 2020, when the Colorado Administrator of the Uniform Con - sumer Credit Code and the Colorado Attorney Gen- eral entered into an Assurance of Discontinuance with Avant of Colorado, LLC, Marlette Funding, LLC, WebBank, Cross River Bank, and related parties. The agreement resolved an investigation into compliance with Colorado consumer credit law and then estab - lished a detailed “safe harbour” for specified loans to Colorado residents made through the online bank– partnership programmes covered by the settlement. The 2020 settlement is important not because it set - tled the “true lender” question in the abstract: it did not. Its significance lies in what it shows about Colo - rado’s approach. The state was willing to examine bank–partnership lending at the level of programme design and to impose conditions on the covered lend - ing models rather than treat the presence of a bank in the structure as the end of the inquiry. Colorado was therefore already pressing on the legal architecture of bank–fintech lending before the more recent DIDMCA dispute emerged. That history makes the state’s later opt-out legislation look less like an isolated confronta - tion and more like the next stage of the same project. DIDMCA, through 12 U.S.C. § 1831d, generally allows a state-chartered, federally insured bank to charge interest at the rate permitted by the law of the state where the bank is located, even when lending to bor - rowers in states with lower caps. Congress, however, preserved an opt-out mechanism for states as to cer - tain loans “made in” the state. In 2023, Colorado exer - cised that authority through House Bill 23-1229. The bill summary states that, for consumer credit transac - tions made or renewed on or after 1 July 2024, Colo - rado opted out of specified federal amendments and provided that rates established under the Colorado
Uniform Consumer Credit Code would apply to con - sumer credit transactions in the state. The litigation that followed turned on a question that sounds narrow until its consequences come into view: in an interstate and increasingly digital lending mar - ket, when is a loan “made in” Colorado? In National Association of Industrial Bankers et al. v Weiser , indus- try plaintiffs challenged Colorado’s law and obtained a preliminary injunction in the district court. On 10 November 2025, the United States Court of Appeals for the Tenth Circuit reversed. The court described the issue as one of first impression and held that the phrase “loans made in such State” refers to loans in which either the lender or the borrower is located in the opt-out state. On that reading, once Colorado opted out, Section 1831d no longer pre-empted Colorado’s interest rate caps for loans made by out-of-state state banks to Colorado borrowers. The significance of that holding lies in what it unset - tles. For years, a substantial share of interstate lending has rested on the assumption that a state-chartered bank can rely on the law of its home state to export rates into more restrictive jurisdictions without sub - stantial interference from the borrower’s state. Weis- er does not eliminate that framework entirely, but it makes clear that borrower location cannot simply be assumed when a state has made full use of DIDMCA’s opt-out mechanism. The dissent captured the stakes by warning that the majority’s interpretation risks cre - ating a patchwork difficult to administer in interstate and online banking. The reaction to the panel decision underscores its importance. On 17 December 2025, the Office of the Comptroller of the Currency announced that it had filed an amicus brief urging rehearing en banc, stat - ing that the panel’s decision undermines the federal interest rate framework Congress granted to state banks and places them at a significant competitive disadvantage relative to national banks. Even with - out it, Colorado’s dispute has already become one of the clearest current tests of how durable federal rate exportation assumptions remain in a market built on interstate digital lending.
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