On Tuesday, February 8, 2022, the United States District
Court for the Northern District of California issued two separate
orders that upheld the OCC's and FDIC's "valid-when-made"
rules.
In 2020, the OCC and FDIC issued separate rules addressing,
among other things, uncertainty in secondary markets following the
decision of Madden v. Midland Funding, LLC, 786 F.3d 246
(2d Cir. 2015) which established that usury claims against non-bank
assignees were not preempted by the National Banking Act of 1864
(NBA). The OCC promulgated a rule entitled "Permissible
Interest on Loans That Are Sold, Assigned, or Otherwise
Transferred" which is codified under 12 CFR §
160.110(d) and provided that permissible interest on loans
originated by savings associations is not affected by the sale,
assignment, or other transfer of the loan. Additionally, the FDIC promulgated its own "valid when
made" rule entitled "Interest Rate Authority"
under 12 CFR § 331.4(e) that clarified that the
