On July 21, 2011, the Office of the Comptroller of the Currency ("OCC") published in the Federal Register its final regulations to define the extent to which the National Bank Act ("NBA") (1) and the Home Owners' Loan Act ("HOLA") (2) preempt state laws for national banks and federal savings associations, respectively. (3) With some impertinent exceptions, the new OCC regulations took effect the same day. (4) In this rulemaking, the OCC, among other things, revised sections 7.4007, (5) 7.4008, (6) and 34.4 (7) of its regulations to conform them to section 1044 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"). (8) These three sections, all first promulgated in 2004, purported to define the extent to which the NBA preempted state laws related to deposit taking, non-mortgage lending, and mortgage lending, respectively, for national banks. (9)
In 2004, the OCC adopted a set of rules that purported to define which state laws were preempted for national banks by the NBA. (10) The portions of these rules that are most important for the present discussion were codified in the OCC's regulations at sections 7.4007, 7.4008, and 34.4. (11) Section 7.4007 addressed the preemption of state laws that regulated deposit taking; (12) section 7.4008 addressed the preemption of state laws that regulated non-mortgage lending; (13) and section 34.4 addressed the preemption of state laws that regulated mortgage lending. (14)
Each section began by stating that any state laws that "obstruct, impair, or condition" a national bank's authority under federal law were preempted. (15) Each section then provided an illustrative list (each a "Preempted Laws List") that identified specific categories of state laws preempted under this "obstruct, impair, or condition" standard. (16) Finally, each section identified types of state laws that normally are not preempted "to the extent that they only incidentally affect the exercise of national banks'" powers. (17) These lists of non-preempted state laws included state laws relating to contracts, (18) torts, (19) criminal law, (20) rights to collect debts, (21) acquisition and transfer of property, (22) taxation, (23) and zoning. (24)
The Preempted Laws List in section 7.4007 (relating to deposit taking) included, among other types of state laws, state laws concerning abandoned and dormant accounts, (25) checking accounts, (26) disclosure requirements, (27) funds availability, (28) savings account orders of withdrawal, (29) and special purpose savings services. (30) The Preempted Laws List in section 34.4 (mortgage lending) included, among other types of state laws, state laws concerning the ability of a creditor to require credit or collateral insurance; (31) loan-to-value ratios; (32) the terms of credit; (33) the aggregate amount of funds that may be loaned upon the security of real estate; (34) escrow accounts; (35) access to, and use of, credit reports; (36) disclosure and advertising; (37) and disbursements and repayments. (38) The Preempted Laws List in section 7.4008 (non-mortgage lending) was mostly identical to the Preempted Laws List for mortgage lending, (39) except that it omitted a few types of state laws unique...