Amicus Curiae Brief — Alex Cantero, et al., Individually and on Behalf of All Others Similarly Situated, Petitioners v. Bank of America, N.A.

No. 25-1313

In the

Supreme Court of the United States

ALEX CANTERO, et al.,

INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED,

Petitioners,

v.

BANK OF AMERICA, N.A.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

BRIEF FOR AMICUS CURIAE

CONFERENCE OF STATE BANK SUPERVISORS

IN SUPPORT OF PETITIONERS

Matthew Lambert

Deputy General Counsel

Conference of State

Bank Supervisors

1300 I Street NW,

Suite 700 East

Washington, DC 20005

A rthur E. Wilmarth, Jr.

Professor Emeritus of Law

George Washington University

Law School

2000 H Street, NW

Washington, DC 20052

Stefan L. Jouret

Counsel of Record

Jouret LLC

265 Franklin Street,

Suite 1702

Boston, MA 02110

(617) 523-0133

jouret@jouretllc.com

Attorneys for Amicus Curiae

132214

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Second Circuit Did Not Follow the

Preemption Methodology Prescribed in

Cantero . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Cantero Required the Second Circuit

to Make a “Practical Assessment of the

Nature and Degree of the Interference”

Allegedly Caused by NYGOL § 5-601

w ith National Banks’ MortgageEscrow Power . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Second Circuit’s “Efficiency”

Standard Produced the Same Blanket

Preemption Outcome as Its Rejected

“Control” Test . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. Proper Application of Cantero’s

Methodolog y Demonstrates that

NYGOL § 5-601 Is Not Preempted . . . . . . . 8

ii

Table of Contents

Page

1.

NYGOL § 5-601 is a valid state

consumer protection law that does

not conf lict with Dodd-Frank,

TILA, or RESPA . . . . . . . . . . . . . . . . . . 8

2. T he “ pr a c t ic a l a s se s sment ”

required by Cantero’s preemption

methodology demonstrates that

§ 5-601 does not “significantly

interfere” with national banks’

mortgage-escrow power . . . . . . . . . . . . 14

3. A “ n u a n c e d c o m p a r a t i v e

analysis” of key Supreme Court

precedents confirms that § 5-601

is not preempted . . . . . . . . . . . . . . . . . . 16

II. The OCC’s Preemption Rules Are Invalid . . . . 17

A. The OCC’s Regulations Produce the

Same Unlawful Blanket Preemption

as the Second Ci rcu it Major ity

Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. The OCC’s Regulations Violate DoddFrank ’s “ Substantial Ev idence”

Requirement . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. T he OCC ’s Reg u lat ions Violat e

D o d d - F r a n k ’s “ C a s e - by- C a s e ”

Requirement . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

Table of Contents

Page

D. The OCC’s Reg ulations Seek to

Preempt Virtually All State Consumer

Protection Laws . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iv

TABLE OF CITED AUTHORITIES

Cases

Page

Anderson Nat’l Bank v. Luckett,

321 U.S. 233 (1944) . . . . . . . . . . . . . . . . . . . . . . . 5, 14-17

Asociación de Detallistas de Gasolina

de Puerto Rico, Inc. v. Puerto Rico,

Civil No. 23-1175 (RAM) (D.P.R. Sept. 22, 2023),

2023 WL 6201398, aff’d, 138 F.4th 686

(1st Cir. 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Barnett Bank of Marion County, N.A. v. Nelson,

517 U.S. 25 (1996) . . . . . . . . . . . . . . . . 4, 5, 8, 16, 21, 24

Biestek v. Berryhill,

587 U.S. 97 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Cantero v. Bank of America, N.A.,

49 F.4th 121 (2d Cir. 2022),

vacated and remanded, 602 U.S. 205

(2024) . . . . . . . . . . . . . . . . . . . . . 1, 2, 4-9, 14, 16, 20, 23

Cantero v. Bank of America, N.A.,

175 F.4th 201 (2d Cir. 2026) . . . . . . . . . . . 1-8, 10-11, 14,

16-20, 23, 25

Consolidated Edison Co. v. NLRB,

305 U.S. 197 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

v

Cited Authorities

Page

Conti v. Citizens Bank, N.A.,

157 F.4th 10 (1st Cir. 2025), cert. denied,

2026 WL 1052171 (April 20, 2026) . . 3, 8, 11, 12, 14, 16, 20

Cuomo v. Clearing House Ass’n, L.L.C.,

557 U.S. 519 (2009) . . . . . . . . . . . . . . . . . . . . . . 3, 24, 25

Federal Nat’l Mortgage Ass’n v. Lefkowitz,

390 F. Supp. 1364 (S.D.N.Y. 1975) . . . . . . . . . . 9, 14, 15

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,

458 U.S. 141 (1982) . . . . . . . . . . . . . . . . . . . . . . 5, 16, 19

First Nat’l Bank of San Jose v. California,

262 U.S. 366 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Franklin Nat’l Bank v. New York,

347 U.S. 373 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

Hymes v. Bank of America, N.A.,

408 F. Supp. 3d 171 (E.D.N.Y. 2019), rev’d,

Cantero v. Bank of America, N.A.,

49 F.4th 121 (2d Cir. 2022), vacated

and remanded, 602 U.S. 205 (2024) . . . . . 9, 15, 19, 22

Ill. Bankers Ass’n v. Raoul,

819 F. Supp. 3d 882 (N.D. Ill. 2026),

vacated and remanded, 2026 WL 1291987

(7th Cir. May 8, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . 20

vi

Cited Authorities

Page

Jamaica Sav. Bank v. Lefkowitz,

390 F. Supp. 1357 (E.D.N.Y.),

aff’d without opinion, 423 U.S. 802 (1975) . . . . . 9, 14

Kivett v. Flagstar Bank, FSB,

154 F.4th 640 (9th Cir. 2025) . . . . . . . . . . . . . . . . . . . 20

Lusnak v. Bank of Am., N.A.,

883 F.3d 1185 (9th Cir.),

cert. denied, 139 S. Ct. 567 (2018) . . . . . . . . . 11, 15, 18

McClellan v. Chipman,

164 U.S. 347 (1896) . . . . . . . . . . . . . . . . . . . . 5, 6, 16, 17

Nat’l Bank v. Commonwealth,

76 U.S. 353 (1870) . . . . . . . . . . . . . . . . . . . . . . . 5, 16, 17

Texaco, Inc. v. Hughes,

572 F. Supp. 1 (D. Md. 1982) . . . . . . . . . . . . . . . . . . . 13

Williams v. First Government Mortgage

& Investors Corp.,

176 F.3d 497 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . 12, 13

Statutes and Other Authorities

12 U.S.C. § 25b . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12, 17

12 U.S.C. § 25b(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

12 U.S.C. § 25b(b)(1)(B) . . . . . . . . . . . 2, 4, 7, 10, 19, 21, 23

vii

Cited Authorities

Page

12 U.S.C. § 25b(b)(3)(A) . . . . . . . . . . . . . . . . . . . . . 3, 21, 23

12 U.S.C. § 25b(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19, 21

12 U.S.C. § 2616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

15 U.S.C. § 1610(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 13

15 U.S.C. § 1639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

15 U.S.C. § 1639d(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

15 U.S.C. § 1639d(g)(3) . . . . . . . . . . . . . . . . . . . 2, 10, 11, 14

New York General Obligation Law § 5-601 . . . . 1, 2, 4-10,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14-17

12 C.F.R. § 34.4(a) . . . . . . . . . . . . . . . . . . . . . 2, 17-19, 21, 22

12 C.F.R. § 34.7 . . . . . . . . . . . . . . . . . . . . 2, 17-19, 21-23, 25

Supreme Court Rule 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Arthur E. Wilmarth, Jr., “On Remand in Cantero,

the Second Circuit Should Uphold New

York’s Interest-on-Escrow Law and Reject

Bank of America’s Preemption Claim,” 20

Rutgers Business Law Review 76 (2024),

https://ssrn.com/abstract=5080405 . . . . . 15-17, 19, 20, 22

viii

Cited Authorities

Page

Arthur E. Wilmarth, Jr., “Policy Brief: The OCC’s

Unlawful Proposal to Preempt State Intereston-Escrow Laws Reveals That the Agency’s

Ultimate Goal Is to Revive Its Illegal De

Facto Field Preemption Regime for National

Banks,” (Geo. Wash. U. L. Sch. Leg. Stud.

Rsrch. Paper No. 2026-17, Feb. 20, 2026),

https://ssrn.com/abstract=6304062 . . . . . . . . . . 22, 23

Bank Activities and Operations; Real Estate

Lending and Appraisals, 69 Fed. Reg. 1904

(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Financial Crisis Inquiry Comm’n, The Financial

Crisis Inquiry Report (2011), https://fcic-static.

law.stanford.edu /cdn_media/fcic-reports/

fcic_final_report_full.pdf . . . . . . . . . . . . . . . . . . . . . . 25

Preemption Determination: State Interest-onEscrow Laws, 91 Fed. Reg. 29350 (2026) . . . . . . . 17-23

S. Rep. No. 111-176 (2010) . . . . . . . . . . . . . . . . . . . . . 24, 25

1

INTEREST OF AMICUS CURIAE

Amicus Conference of State Bank Supervisors is

a national association of state officials responsible for

regulating state-chartered banks and state-licensed

providers of financial services in all 50 States, American

Samoa, the District of Columbia, Guam, Puerto Rico, and

the U.S. Virgin Islands.1

Amicus has a compelling interest in supporting

the petition for certiorari. The decision below held that

federal law preempts New York General Obligation

Law (“NYGOL”) § 5-601. The decision below, unless

reversed by this Court, would give national banks an

unwarranted competitive advantage over state-chartered

and state-licensed mortgage lenders and servicers and

seriously impair the States’ authority to regulate financial

institutions and protect consumers.

SUMMARY OF ARGUMENT

The Second Circuit’s majority opinion (majority)

determined that NYGOL § 5-601 was preempted. However,

the majority did not follow the preemption methodology

prescribed by this Court in Cantero v. Bank of Am., N.A.,

602 U.S. 205 (2024) (Cantero). Cantero instructed the

Second Circuit (i) to make a “practical assessment of the

nature and degree of the interference” allegedly caused

by § 5-601, and (ii) to perform a “nuanced comparative

1. As required by Rule 37.2, all parties received timely notice

of amicus’ intent to file this brief. In accordance with Rule 37.6,

amicus states that no party’s counsel authored this brief in whole

or in part, and no person other than amicus or its counsel funded

its preparation or submission.

2

analysis” relating § 5-601 to the state laws examined in

seven key decisions of this Court. App. 72a-74a.

The Second Circuit majority did not follow Cantero’s

instructions and instead transformed its previously

rejected “control” test into an “efficiency” standard. The

majority’s new standard presumptively overrides any state

law that “impedes” a national bank’s ability to exercise

its powers “efficiently.” App. 20a. The majority refused

to consider any “record evidence” of § 5-601’s “real-world

effects.” App. 20a n.5. The dissenting opinion (dissent)

correctly described the majority’s “efficiency” standard

as “a relabeling of the rejected control test,” preempting

“almost every state law that imposes any restriction on

national banks.” App. 47a.

Applied correctly, Cantero’s methodology establishes

that NYGOL § 5-601 is a valid, non-preempted consumer

protection law. Section 5-601 requires payment of modest

interest on escrow balances funded by borrowers, but it

does not prohibit or restrict the use of escrow accounts,

impair the security provided by those accounts, or dictate

how those accounts are administered by national banks.

Section 5-601 operates in harmony with federal laws,

including the “only if” language of 12 U.S.C. § 25b(b)(1)(B),

two provisions of the Truth in Lending Act (“TILA”), 15

U.S.C. §§ 1610(b) & 1639d(g)(3), and the savings clause

in the Real Estate Settlement Procedures Act, 12 U.S.C.

§ 2616.

The Second Circuit majority cited two regulations

issued by the Office of the Comptroller of the Currency

(OCC), 12 C.F.R. §§ 34.4(a) & 34.7. The OCC’s rules rely on

the same erroneous “efficiency” standard as the majority

3

opinion. In conclusory fashion, the OCC’s rules sweep aside

fourteen state interest-on-escrow laws, thereby violating

(i) the OCC’s duty to provide “substantial evidence, made

on the record of the proceeding,” to support the agency’s

preemption determinations, 12 U.S.C. § 25b(c), and (ii) the

OCC’s obligation to make preemption determinations on

a “case-by-case basis,” addressing the specific terms of

each preempted law, id. § 25b(b)(3)(A). The OCC’s invalid

rules seek to resurrect the across-the-board preemption

regime imposed by the agency in 2004, which this Court

rejected in Cuomo v. Clearing House Ass’n, L.L.C., 557

U.S. 519, 533 (2009) (Cuomo), and Congress repudiated

in 12 U.S.C. § 25b.

This case provides an ideal vehicle to resolve the direct

conflict between the decision below and Conti v. Citizens

Bank, N.A., 157 F.4th 10 (1st Cir. 2025), cert. denied,

2026 WL 1052171 (April 20, 2026) (Conti). The OCC’s

preemption determination, which endorsed the decision

below, magnifies the importance of removing the threat

posed by the Second Circuit’s decision as well as the OCC’s

preemption rules to the States’ longstanding authority

to regulate financial institutions and protect consumers.

4

ARGUMENT

I.

The Second Circuit Did Not Follow the Preemption

Methodology Prescribed in Cantero.

A.

Cantero Required the Second Circuit to Make

a “Practical Assessment of the Nature and

Degree of the Interference” Allegedly Caused

by NYGOL § 5-601 with National Banks’

Mortgage-Escrow Power.

In its initial decision, the Second Circuit held that

NYGOL § 5-601 was preempted because it “would exert

control over a banking power granted by the federal

government, so it would impermissibly interfere with

national banks’ exercise of that power.” App. 79a. This

Court vacated and remanded the Second Circuit’s initial

decision because it did not conform to “the controlling

legal standard” for determining whether state consumer

financial laws are “preempted with respect to national

banks.” App. 65a, 74a. This Court confirmed that

the “controlling legal standard” is the “prevents or

significantly interferes” test, established in Barnett

Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 33

(1996) (Barnett Bank), and codified in the Dodd-Frank

Wall Street Reform and Consumer Protection Act (DoddFrank), 12 U.S.C. § 25b(b)(1)(B). App. 65a-66a.

This Court rejected the Second Circuit’s “control”

test because it would “preempt virtually all state laws

that regulate national banks, at least other than generally

applicable state laws such as contract or property laws.”

App. 73a. This Court held that “[a] court applying [the]

Barnett Bank standard must make a practical assessment

5

of the nature and degree of the interference caused by a

state law” with “the national bank’s exercise of its powers.”

App. 72a. In addition, a court must conduct a “nuanced

comparative analysis” of this Court’s key precedents

and “carefully account for” whether the challenged state

consumer financial law is “more akin to” either:

(a) the state laws that significantly interfered

w ith national bank powers and were

preempted in Barnett Bank, Franklin

Nat’l Bank v. New York, 347 U.S. 373 (1954)

(Franklin), First Nat’l Bank of San Jose v.

California, 262 U.S. 366 (1923) (San Jose),

and Fidelity Fed. Sav. & Loan Ass’n v. de

la Cuesta, 458 U.S. 141 (1982) (Fidelity); or

(b) the state laws that did not significantly

interfere with national bank powers and were

upheld in Anderson Nat’l Bank v. Luckett,

321 U.S. 233 (1944) (Anderson), McClellan

v. Chipman, 164 U.S. 347 (1896) (McClellan),

and Nat’l Bank v. Commonwealth, 76 U.S.

353 (1870) (Commonwealth).

App. 72a-74a.

On remand, the Second Circuit majority did not follow

Cantero’s instructions. Instead, as explained in Part

I.B, the majority fashioned a new and equally erroneous

test, which presumptively overrides any state law that

“impedes” a national bank’s ability to exercise its powers

“efficiently.” App. 7a-8a, 18a, 20a (quote), 23a. As shown

in Part I.C, proper application of Cantero’s methodology

demonstrates that § 5-601 is not preempted because it

6

does not prevent or significantly interfere with national

banks’ exercise of their mortgage-escrow power.

B. The Second Circuit’s “Efficiency” Standard

Produced the Same Blanket Preemption

Outcome as Its Rejected “Control” Test.

The Second Circuit majority held that “a state law’s

interference is severe when it prevents a bank from

efficiently exercising its powers or makes a bank’s

product undesirable to consumers.” App. 18a (emphasis

added). The majority based its finding of preemption

solely on the first factor, declaring that § 5-601 “impedes

national banks’ ability to offer [mortgage escrow] accounts

efficiently.” App. 20a (emphasis added). The majority did

not rely on the second factor because the “likely effect

[of § 5-601] on the attractiveness of a bank’s products

and services is inconclusive here.” App. 25a. As shown

below, the majority’s “efficiency” standard did not follow

Cantero’s prescribed methodology and failed to establish

that § 5-601 prevents or significantly interferes with any

national bank power.

Under the majority’s “efficiency” standard, any state

law that “impedes” the “efficient” exercise of a national

bank’s powers is deemed “severe” and presumptively

preempted, even if that state law does not make the bank’s

services “undesirable to consumers.” App. 18a. The only

possible exception would be a “generally applicable” state

law that “restricted [national] banks in only ‘particular

and exceptional circumstances.’” App. 18a n.4 (quoting

McClellan, 164 U.S. at 358). The majority’s reinvented

standard violated Dodd-Frank because a state law’s

impacts on “efficiency” are irrelevant unless they prevent

7

or significantly interfere with a national bank’s ability to

exercise its powers. 12 U.S.C. § 25b(b)(1)(B).

The Second Circuit majority never demonstrated that

§ 5-601 prevents or significantly interferes with national

banks’ mortgage-escrow power as a practical—rather

than hypothetical—matter. Indeed, the majority declared

that “we do not require record evidence of a law’s realworld effects” to find preemption (App. 20a n.5). The

majority’s refusal to consider the “real-world effects” of

§ 5-601 echoed the Second Circuit’s initial decision, which

held that any “state law purport[ing] to exercise control

over a federally granted banking power” was preempted,

regardless of “the magnitude of its effects.” App. 91a-92a.

The Second Circuit majority violated Cantero’s

instructions by failing to make a “practical assessment

of the nature and degree of the interference” caused by

§ 5-601 with the “exercise” of national banks’ mortgageescrow power. App. 72a. The Second Circuit majority

merely asserted, without any “practical” evaluation of

§ 5-601’s “real-world effects,” that “a state law’s impact on

a national bank’s efficiency informs the degree of the state

law’s interference with federal law.” App. 19a, 19a-20a n.5.

The majority’s conclusory approach—untethered from the

“practical assessment” required by Cantero—would again

override “virtually all state laws that regulate national

banks, at least other than generally applicable state laws

such as contract or property laws.” App. 73a.

The Second Circuit dissent correctly described the

majority’s “efficiency” standard as “a relabeling of the

rejected control test.” App. 47a; see also id. (“By reframing

the federal grant of power as enabling national banks

8

to exercise discretion and flexibility, suddenly almost

every state law that imposes any restriction on national

banks at all necessarily conflicts with the federal grant

of power so conceived, risking preemption.”). The First

Circuit held in Conti that Barnett Bank’s “significantly

interferes” preemption standard cannot be satisfied

merely by showing that a state law imposes “some burden

. . . affect[ing] a bank’s flexibility or efficiency.” 157 F.4th

at 25. If limiting “flexibility or efficiency” were “sufficient

grounds for preemption,” that outcome “would obviate the

need for an inquiry into whether a state law’s interference

with federal-banking powers was significant,” as Barnett

Bank and Dodd-Frank require. Id.

The Second Circuit majority violated Cantero’s

prescribed methodology by refusing to make a “practical”

assessment of § 5-601’s “real-world effects” on national

banks’ exercise of their mortgage-escrow power. App.

19a-20a n.5. The majority’s refusal was indefensible

in light of its admission that § 5-601’s “likely effect on

the attractiveness of a bank’s products and services is

inconclusive here.” App. 25a.

C.

Proper Application of Cantero’s Methodology

Demonstrates that NYGOL § 5-601 Is Not

Preempted.

1.

NYGOL § 5-601 is a valid state consumer

protection law that does not conflict with

Dodd-Frank, TILA, or RESPA.

The Second Circuit majority incorrectly stated that

“no court has enforced compliance with [§ 5-601’s] intereston-escrow requirement.” App. 12a. In fact, two different

three-judge district courts upheld § 5-601’s validity

9

against constitutional challenges in 1975, and this Court

summarily affirmed one of those decisions. Jamaica Sav.

Bank v. Lefkowitz, 390 F. Supp. 1357 (E.D.N.Y.) (JSB)

(three-judge court), aff’d without opinion, 423 U.S. 802

(1975); Federal Nat’l Mortgage Ass’n v. Lefkowitz, 390 F.

Supp. 1364 (S.D.N.Y. 1975) (FNMA) (three-judge court).

In addition, the district court below rejected Bank of

America’s preemption challenge to § 5-601. Hymes v.

Bank of America, N.A., 408 F. Supp. 3d 171 (E.D.N.Y. 2019)

(Hymes), rev’d sub nom. Cantero v. Bank of America,

N.A., 49 F.4th 121 (2d Cir. 2022), vacated and remanded,

602 U.S. 205 (2024).

As JSB and Hymes explained, § 5-601 protects

consumers by requiring mortgage lenders and servicers to

pay reasonable interest on balances that borrowers must

maintain in mortgage escrow accounts. Lenders require

borrowers to prefund escrow accounts to ensure timely

payment of real property taxes and hazard insurance

premiums, thereby providing crucial protection for

lenders’ security interests. 2 The New York legislature

determined that “mortgage lenders could ‘well afford to

pay’ at least two percent interest on escrow accounts.”

JSB, 390 F. Supp. at 1363.

2. JSB, 390 F. Supp. at 1359-63 (NYGOL § 5-601 “restor[ed]

fairness to the relationship between banks and mortgagors” by

“creat[ing] a remedy to a problem [the legislature] perceived— the

inability of citizens seeking mortgages from mortgage lending

institutions to bargain effectively for the use of funds put into”

escrow accounts); Hymes, App. 147a-149a, 167a, 185a (§ 5-601

responded to mortgage lenders’ practice of investing borrowers’

funds in escrow accounts “for [lenders’] own benefit, effectively

giving themselves an interest-free loan for however long the

mortgage escrow account[s] remained in place.”).

10

In Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963), this Court affirmed the States’

“traditional power to enforce otherwise valid regulations

designed for the protection of consumers.” Id. at 150.

Given the States’ “historic police powers,” this Court held

that “we are not to conclude that Congress legislated the

ouster of [a state consumer protection] statute . . . in the

absence of an unambiguous congressional mandate to that

effect.” Id. at 146-47 (citation omitted).

There is no congressional mandate for preemption in

this case. The Dodd-Frank Act expresses a strong federal

policy in favor of applying state consumer protection

laws to national banks. Under 12 U.S.C. § 25b(b)(1)(B),

a nondiscriminatory state consumer financial law, like

NYGOL § 5-601, is preempted “only if” a court or the OCC

determines that the state law “prevents or significantly

interferes with the exercise by the national bank of its

powers”. The Second Circuit majority acknowledged

Dodd-Frank’s “only if” language (App. 10a) but never

discussed its significance.

The Second Circuit majority concluded that TILA and

RESPA supported its finding of preemption because those

statutes do not expressly require Bank of America to pay

interest on Plaintiffs’ mortgage-escrow balances. App.

21a-23a, 27a. The majority erred by overlooking crucial

provisions of TILA and RESPA and Dodd-Frank’s “only

if” language.

As amended by Dodd-Frank, § 1639d(g)(3) of TILA

requires mortgage lenders to pay interest “prescribed by

applicable State . . . law” on escrow balances for mortgages

specified in § 1639d(b). Section 1639d(g)(3) does not apply

11

to Plaintiffs’ mortgages. However, as the Second Circuit

dissent and two federal appellate courts pointed out,

§ 1639d(g)(3) “illuminates ‘Congress’s view that [state

interest-on-escrow] laws would not necessarily prevent or

significantly interfere with a national bank’s operations.’”

App. 50a (quoting Lusnak v. Bank of Am., N.A., 883 F.3d

1185, 1194-95 (9th Cir.) (Lusnak), cert. denied, 139 S. Ct.

567 (2018)); Conti, 157 F.4th at 24 (“Congress’s decision

to mandate compliance with state interest-on-escrow

laws as to certain mortgages provides some evidence that

such laws are not inconsistent with the federal-banking

scheme.”). Thus, § 1639d(g)(3) manifests a congressional

understanding that state interest-on-escrow laws operate

in harmony with federal laws and are not incompatible

with national banks’ mortgage-escrow power.

RESPA, like TILA, does not expressly require Bank

of America to pay interest on Plaintiffs’ mortgage-escrow

balances. App. 63a & n.1. The Second Circuit majority

inferred a congressional intent to preempt state intereston-escrow laws from its view of RESPA’s and TILA’s

“statutory silence” regarding such laws. App. 21a-23a,

27a. The majority erred in drawing that inference, given

Dodd-Frank’s “only if” language and TILA’s and RESPA’s

savings clauses, which preserve the application of state

laws that provide greater protection to consumers.

The Second Circuit dissent determined that the

“only if” language in Dodd-Frank’s preemption standard

“establishes a presumption that state laws are not

preempted” merely by “congressional silence.” App. 50a

(quoting 12 U.S.C. § 25b(b)(1)). Similarly, the First Circuit

in Conti rejected the defendant national bank’s argument

that “Congress’s silence [in TILA and RESPA] reflects a

12

‘deliberate choice’ to exempt national banks from having

to comply with state interest-on-escrow laws.” 157 F.4th

at 21. The First Circuit held that such a “congressional

intent-by-silence argument . . . would violate the plain text

of section 25b.” Id. at 21-22.

TILA and RESPA are not silent about the States’

authority to enact laws like NYGOL § 5-601. TILA

and RESPA contain savings clauses, which confirm the

States’ power to adopt laws granting greater protection

to consumers than federal law provides. TILA’s savings

clause states that— except for § 1639’s provisions

governing “high-cost” mortgages (which do not apply to

Plaintiffs’ mortgages)—TILA

does not otherwise annul, alter or affect in any

manner the meaning, scope or applicability

of the laws of any State, including, but not

limited to, laws relating to the types, amounts

or rates of charges, or any element or elements

of charges, permissible under such laws in

connection with the extension or use of credit

. . . [15 U.S.C. § 1610(b)].

Thus, § 1610(b) affirms the validity under TILA of

state laws like § 5-601, which regulate “charges” that

are “permissible . . . in connection with the extension

or use of credit.” In Williams v. First Government

Mortgage & Investors Corp., 176 F.3d 497 (D.C. Cir.

1999), the court rejected a mortgage lender’s argument

that TILA preempted a D.C. statute’s “substantive

protections for borrowers against unconscionable loan

terms and provisions.” Id. at 500. The court held that

“[n]othing in TILA or its legislative history suggests

13

that Congress intended the Act’s disclosure regime to

provide the maximum protection to which borrowers are

entitled nationwide; states remain free to impose greater

protections for borrowers.” Id. (emphasis added); accord

Texaco, Inc. v. Hughes, 572 F. Supp. 1, 6-8 (D. Md. 1982)

(§ 1610(b) supported the court’s conclusion that TILA did

not preempt a Maryland law barring oil companies from

imposing fees on credit card sales by gasoline dealers);

Asociación de Detallistas de Gasolina de Puerto Rico,

Inc. v. Puerto Rico, Civil No. 23-1175 (RAM) (D.P.R. Sept.

22, 2023), 2023 WL 6201398, at *4-*5 (§ 1610(b) supported

the court’s finding that TILA did not preempt a Puerto

Rico law prohibiting cash discounts by gasoline retailers),

aff’d, 138 F.4th 686 (1st Cir. 2025).

Similarly, RESPA’s savings clause provides that

RESPA

does not annul, alter, or affect, or exempt any

person subject to the provisions of [RESPA]

from complying with, the laws of any State

with respect to settlement practices, except to

the extent that those laws are inconsistent with

any provision of [RESPA], and then only to the

extent of the inconsistency. The [Consumer

Financial Protection] Bureau is authorized to

determine whether such inconsistencies exist.

The Bureau may not determine that any

State law is inconsistent with any provision

of [RESPA] if the Bureau determines that

such law gives greater protection to the

consumer. . . . [12 U.S.C. § 2616 (emphasis

added).]

14

The First Circuit held in Conti that “RESPA does

not preclude the enforcement of state laws that grant

additional protection to consumers beyond what RESPA

provides.” 157 F.4th at 20 n.7. The Second Circuit majority

clearly erred in inferring any preemptive intent from

TILA and RESPA (App. 21a-23a), given § 1639d(g)(3),

TILA’s and RESPA’s savings clauses, and Dodd-Frank’s

“only if” language.

2.

The “practical assessment” required

by Cantero’s preemption methodology

demonstrates that § 5 - 601 does not

“significantly interfere” with national

banks’ mortgage-escrow power.

In JSB and FNMA, the district courts rejected

challenges to NYGOL § 5-601 under the Contract Clause

and the Fourteenth Amendment’s Due Process and Equal

Protection Clauses. The courts concluded that § 5-601 was

a valid state consumer protection law and did not create

an unlawful “taking,” as it did not impose any net loss on

mortgage lenders’ escrow operations. JSB, 390 F. Supp.

at 1361-63; see also FNMA, 390 F. Supp. at 1367-70.

The district court in FNMA also rejected FNMA’s

claim that its governing federal statute preempted § 5-601.

The court found that the “closest analogy” to FNMA’s

Supremacy Clause challenge was the national bank’s

preemption claim rejected in Anderson. 390 F. Supp.

at 1368. The court in FNMA determined that, “[a]s in

Anderson, the state law at issue here does not discriminate

against FNMA as a federal mortgage lending institution”

or conflict with any federal statute. Id. at 1369. NYGOL

§ 5-601 “does not regulate how FNMA must keep or invest

15

the escrow funds in its possession,” or “interfere directly

with [FNMA’s] internal management.” Id. NYGOL

§ 5-601 “in no way impairs” the use of mortgage escrow

accounts “to protect [FNMA’s] interest in the mortgaged

property.” Id. Accordingly, the “burdens” placed on

FNMA by § 5-601 “seem insignificant” and did not violate

the Supremacy Clause. Id.

The district court in Hymes similarly determined that

§ 5-601’s “degree of interference” with national banks’

mortgage-escrow power is “minimal.” App. 185a. Section

5-601 “does not bar the creation of mortgage escrow

accounts, or subject them to state visitorial control, or

otherwise limit the terms of their use.” Id. National banks

must pay “modest” interest on borrowers’ balances in

escrow accounts, but § 5-601 permits banks to administer

those accounts “relatively unimpaired and unhampered

by the state law.” App. 166a-167a, 186a.

Thus, a proper “practical assessment of the nature and

degree of the interference caused by” § 5-601 (App. 72a)

demonstrates that § 5-601 does not prevent or significantly

interfere with national banks’ mortgage-escrow power.

Wells Fargo and other national banks have long complied

with § 5-601 and California’s similar 2% interest-onescrow law, furnishing “practical” evidence that neither

statute imposes a significant burden on national banks. 3

As the Second Circuit dissent concluded, “[t]here is simply

3. See Hymes, App. 166a-167a, 186a; Lusnak, 883 F.3d at

1190; Arthur E. Wilmarth, Jr., “On Remand in Cantero, the Second

Circuit Should Uphold New York’s Interest-on-Escrow Law and

Reject Bank of America’s Preemption Claim,” 20 Rutgers Business

Law Review 76, 108, 125 (2024) [hereinafter Wilmarth, Cantero],

https://ssrn.com/abstract=5080405.

16

no way to take a modest interest-on-escrow law like New

York’s and paint it convincingly as a threat to the efficient

functioning of national banks.” App. 53a.

3.

A “nuanced comparative analysis” of key

Supreme Court precedents confirms that

§ 5-601 is not preempted.

After conducting the “nuanced comparative analysis”

prescribed by Cantero, App. 72a-74a, the Second Circuit

dissent correctly determined that § 5-601’s relatively

minor impact on national banks’ mortgage-escrow power

is (i) insignificant compared to the very severe burdens

imposed by the state laws that were preempted in Barnett

Bank, Franklin, San Jose, and Fidelity, and (ii) similar

to the insubstantial effects of the state laws that were

upheld in Anderson, McClellan, and Commonwealth.

App. 30a-43a. 4 The First Circuit reached the same

conclusion—based on the required “nuanced comparative

analysis”—regarding Rhode Island’s interest-on-escrow

statute. Conti, 157 F.4th at 16-28.

This Court rejected preemption challenges in

Anderson, McClellan, and Commonwealth because the

state laws in those cases (i) did not discriminate against

national banks or conflict with any federal statutes, (ii)

did not significantly impair the exercise of any national

bank powers, and (iii) were reasonably designed to achieve

valid state goals—protecting long-dormant deposits in

Anderson, preventing insolvent debtors from making

preferential transfers to favored creditors in McClellan,

4. See also Wilmarth, Cantero, supra note 3, at 88-110 (2024)

(showing, based on an analysis of the seven key Supreme Court

precedents identified in Cantero, that § 5-601 is not preempted).

17

and ensuring collection of a lawful state tax on bank

shares in Commonwealth. Similarly, § 5-601 does not

discriminate against national banks, does not conflict with

any federal statute, does not significantly impair national

banks’ mortgage-escrow power, and ensures reasonable

treatment for mortgage borrowers who must maintain

balances in escrow accounts to protect their lenders’

security interests. 5

II. The OCC’s Preemption Rules Are Invalid.

A.

The OCC’s Regulations Produce the Same

Unlawful Blanket Preemption as the Second

Circuit Majority Decision.

The Second Circuit majority cited an OCC rule that

generally preempts state real estate lending laws—12

C.F.R. § 34.4(a)—and a proposed OCC preemption

determination targeting state interest-on-escrow laws.

App. 12a, 21a-22a. Following the Second Circuit’s

decision, the OCC endorsed that decision and adopted

its preemption determination in final form. Preemption

Determination: State Interest-on-Escrow Laws, 91 Fed.

Reg. 29350, 29356-57 (2026) (codified at 12 C.F.R. § 34.7).

Both OCC regulations violate 12 U.S.C. § 25b and are

invalid.

Section 34.4(a)—adopted in 2004 and revised in

2011—authorizes national banks to make real estate

5. Second Circuit dissent, App. 34a-35a n.6, 40a-43a (§ 5-601

is comparable to the state laws upheld in Anderson, McClellan,

and Commonwealth); Wilmarth, Cantero, supra note 3, at 97-110

(same).

18

loans “without regard to [fourteen categories of] state

law limitations,” including state laws regulating “[e]scrow

accounts.” Section 34.7 declares that fourteen state

interest-on-escrow laws are preempted because they

“restrict a national bank’s or Federal savings association’s

flexibility to decide whether and to what extent to pay

interest or other compensation on funds placed in escrow

accounts or assess fees for such accounts.” 91 Fed. Reg.

at 29358.

The OCC based its blanket preemption of state

interest-on-escrow laws in § 34.7 on the same erroneous

“efficiency” standard as the Second Circuit majority.

According to the OCC, (i) “national banks must be

permitted to effectively and efficiently exercise the full

range of powers granted to them by Congress” (id. at

29355); and (ii) a state law “significantly interferes” with

a national bank power whenever it “interferes with critical

flexibility granted to a national bank under Federal law”

or “interferes with a national bank’s effectiveness or

efficiency in exercising its Federal power” (id. at 29354).

The Second Circuit dissent refused to defer to 12

C.F.R. § 34.4(a) because it “offered nothing beyond

[its] bare conclusion [of unlawful interference] and

vague reference to its authority and experience.” App.

55a-56a; accord, Lusnak, 883 F.3d at 1192-95 (denying

deference to 12 C.F.R. § 34.4(a)). The Second Circuit

dissent similarly withheld deference from proposed § 34.7

because its “purported right to flexibility in setting the

terms of escrow accounts . . . ‘would preempt virtually

all state laws that regulate national banks,’ contrary to

the express directive of the Supreme Court that a more

exacting preemption analysis is required.” App. 56a-58a

(quoting App. 73a).

19

B. The OCC’s Regulations Violate Dodd-Frank’s

“Substantial Evidence” Requirement.

Under 12 U.S.C. §§ 25b(b)(1)(B) & (c), the OCC may

not issue a preemptive rule or order unless the OCC

provides “substantial evidence, made on the record of the

proceeding,” supporting the OCC’s conclusion that the

state law “prevents or significantly interferes” with the

exercise of national bank powers. The OCC’s preemption

determination (12 C.F.R. § 34.7) did not present any factual

evidence to support the OCC’s claim that state intereston-escrow laws significantly interfere with national bank

powers. The OCC merely speculated about hypothetical

harms that “could” result from enforcement of such state

laws. 91 Fed. Reg. at 29356. The OCC’s rulemaking

did not provide evidence showing that such harms have

actually occurred during the half century since the first

state interest-on-escrow laws were enacted. Similarly,

the OCC’s general real estate preemption rule, 12 C.F.R.

§ 34.4(a), does not cite any evidence to support the OCC’s

claim that state interest-on-escrow laws are preempted.6

The Second Circuit dissent pointed out that—in

contrast to Fidelity, where the federal agency’s regulation

explained why “the exact type of restrictions on lenders

that California imposed ‘would have a number of adverse

effects’ in the real world”—the “OCC offers no comparable

analysis of the impact of interest-on-escrow laws here,

6. Hymes, App. 177a-178a (The OCC’s 2004 and 2011

rulemakings for § 34.4(a) “do not offer a specific rationale for

preempting state laws limiting escrow accounts, and they do not

even mention escrow interest laws”); Wilmarth, Cantero, supra

note 3, at 111-13 (§ 34.4(a) violates Dodd-Frank’s “substantial

evidence” requirement).

20

and instead relies upon generalizations, which I find

unpersuasive.” App. 58a-59a. The OCC’s rulemaking

states that its preemption determination is expected to

have an annual impact of less than $100 million on the U.S.

economy and is not considered a “significant” or “major”

rule. 91 Fed. Reg. at 29357-58.

Like the OCC, the defendant national banks in Cantero,

Conti, and Kivett v. Flagstar Bank, FSB, 154 F.4th 640

(9th Cir. 2025), have not produced evidence demonstrating

that state interest-on-escrow laws significantly interfere

with their mortgage-escrow operations.7 In Conti, the

First Circuit said that “Citizens [Bank] has not developed

any substantial argument about the practical effects that

arise from the enforcement of the Rhode Island statute on

the exercise of federal-banking power.” 157 F.4th at 25.

The Second Circuit dissent stated that “[n]either Bank of

America nor amici have put forward anything prompting

concern that any bank will change the availability of

escrow accounts . . . if required to pay 2% interest.” App.

40a.

Instead of fulfilling its duty to provide “substantial

evidence” supporting its preemption determination, the

OCC asserted that the “analysis” required by Dodd-Frank

is ‘‘broadly legal and not factual in nature”8 and “does

not require ‘evidence of a law’s real-world effects.’’’ 9 The

7. Wilmarth, Cantero, supra note 3, at 85-86, 103-08, 121-25.

8. 91 Fed. Reg. at 29354 (quoting Ill. Bankers Ass’n v. Raoul,

819 F. Supp. 3d 882, 893 (N.D. Ill. 2026), vacated and remanded,

2026 WL 1291987 (7th Cir. May 8, 2026)).

9. Id. (quoting Second Circuit majority, App. 20a n.5).

21

OCC further claimed that “the Barnett standard . . . does

not require the OCC or a national bank to demonstrate

that compliance with State interest-on-escrow laws

would cause financial harm,” such as “unprofitability or

net losses.” 91 Fed. Reg. at 29351, 29356 n.77. The OCC

admitted that it did not conduct a cost-benefit analysis

and “has not relied on any technical studies or data for

its analysis in this preemption determination, nor is it

required to do so.” Id. at 29358, 29352 n.22.

In adopting §§ 34.4(a) and 34.7, the OCC violated its

duty to support both rules with “substantial evidence.”

The OCC’s rules are devoid of any factual evidence

that “a reasonable mind might accept to support [the

OCC’s] conclusion” that state interest-on-escrow laws

are preempted under 12 U.S.C. §§ 25b(b)(1)(B) & 25b(c).

Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)).

C.

The OCC’s Regulations Violate Dodd-Frank’s

“Case-by-Case” Requirement.

T he OCC must a l so ma ke e a ch preempt ion

determination on a “case-by-case basis,” which must

consider “the impact of a particular State consumer

financial law on any national bank that is subject to that

law, or the law of any other State with substantively

equivalent terms.” 12 U.S.C. §§ 25b(b)(1)(B) & (b)(3)(A).

Accordingly, the OCC must perform an individualized

assessment of the “impact” on national banks of each

“particular State consumer financial law” that the OCC

intends to preempt, unless the state law has “substantively

equivalent terms” to another state law that the OCC has

22

already lawfully preempted. Both OCC rules contravene

Dodd-Frank’s “case-by-case” mandate.10

Section 34.7 preempts fourteen state interest-onescrow laws without conducting any individualized

assessment of the “impact” of each preempted law on

national banks’ mortgage-escrow power. The OCC

acknowledges that the fourteen preempted state laws

“vary to some degree,” but asserts that “each State

law has the same effect: depriving national banks of the

flexibility to exercise the discretion that Federal law . . .

vests in them.” 91 Fed. Reg. at 29356-57.

The OCC’s preemption determination ignores

important distinctions among the fourteen preempted

state laws. New York and California require a 2%

minimum annual interest payment, while Rhode Island

and Vermont require a lower minimum annual payment

based on either (a) the interest rate that mortgage lenders

pay on their own regular savings accounts (if offered), or

(b) the “prevailing market rate” paid by “local financial

institutions” on such accounts. Connecticut and Wisconsin

base their required annual interest payments on savings

account interest rates and mandate interest payments in

2026 of 0.5% and 0.17%, respectively.11

10. With regard to 12 C.F.R. § 34.4(a), see Hymes, 177a-179a

(The OCC’s “blunderbuss approach to preemption” in § 34.4(a)

“run[s] headlong” into Dodd-Frank’s “case-by-case” mandate);

Wilmarth, Cantero, supra note 3, at 111-13 (§ 34.4(a)’s preemption

of fourteen broad categories of state laws violates Dodd-Frank’s

“case-by-case” requirement).

11. Arthur E. Wilmarth, Jr., “Policy Brief: The OCC’s

Unlawful Proposal to Preempt State Interest-on-Escrow Laws

Reveals That the Agency’s Ultimate Goal Is to Revive Its Illegal

23

The OCC’s failure to assess the “ impact” on

national banks of each preempted state interest-onescrow law violated the OCC’s duty to make preemption

determinations on a “case-by-case basis” under 12 U.S.C.

§§ 25b(b)(1)(B) & (b)(3)(A). The OCC’s failure to perform

a “practical assessment of the nature and degree of the

interference” caused by each preempted law also ignored

the preemption methodology prescribed in Cantero, App.

72a-74a.

D.

The OCC’s Regulations Seek to Preempt

Virtually All State Consumer Protection Laws.

The potential implications of this case extend far

beyond state interest-on-escrow laws. The OCC’s

preemption claims in 12 C.F.R. § 34.7, like the Second

Circuit’s majority opinion, would give national banks

broad immunity from state consumer protection laws. The

OCC defended its blanket preemption of state intereston-escrow laws by asserting that those laws interfere

with “national banks’ ability to effectively and efficiently

exercise their real estate and related escrow powers”

in accordance with their “discretion” and “business

judgment.” Id. at 29356. The OCC argued that “national

banks must be permitted to effectively and efficiently

exercise the full range of powers granted to them by

Congress.” Id. at 29355.

The decision below, unless reversed by this Court,

would support the OCC’s efforts to revive its discredited

De Facto Field Preemption Regime for National Banks,” at 19-20

(Geo. Wash. U. L. Sch. Leg. Stud. Rsrch. Paper No. 2026-17, Feb.

20, 2026), https://ssrn.com/abstract=6304062.

24

former regime of across-the-board preemption. The OCC

created that regime by issuing sweeping preemption

rules in 2004, which allowed national banks “to operate

to the full extent of their powers under Federal law,

without interference from inconsistent state laws.” Bank

Activities and Operations; Real Estate Lending and

Appraisals, 69 Fed. Reg. 1904, 1908 (2004).

In Cuomo, this Court rejected the OCC’s rationale

for its 2004 preemption rules. This Court held that the

OCC’s rationale “can be found nowhere within the text of

the statute” and “attempts to do what Congress declined to

do: exempt national banks from all state banking laws, or

at least state enforcement of those laws.” 557 U.S. at 533.

The Dodd-Frank Act repudiated the OCC’s 2004

preemption rules. The Senate Banking Committee

explained that, under Dodd-Frank, “[t]he standard for

preempting State consumer financial law would return

to what it had been for decades, those [sic] recognized

by the Supreme Court in Barnett Bank v. Nelson, 517

U.S. 25 (1996).” S. Rep. No. 111-176, at 175 (2010). DoddFrank codified Barnett Bank’s “prevents or significantly

interferes” preemption test for the specific purpose of

“undoing broader standards adopted by rules, orders,

and interpretations issued by the OCC in 2004.” Id.

(emphasis added).

Congress disavowed the OCC’s 2004 preemption rules

because they helped to cause the global financial crisis

of 2007-09, which “nearly crippled the U.S. economy.”

Id. at 2. The Senate Banking Committee determined

that a “major cause” of that devastating crisis was the

“failure” of the OCC and other federal banking agencies

25

“to stop abusive lending, particularly unsustainable home

mortgage lending.” Id. at 15 (quoting Travis Plunkett’s

testimony). The Committee condemned the OCC’s 2004

preemption rules, which “exempted all national banks

from State lending laws, including the anti-predatory

lending laws,” and “actively created an environment where

abusive mortgage lending could flourish without State

controls.” Id. at 16-17.12

The OCC’s far-reaching preemption claims in 12 C.F.R.

§ 34.7 confirm the OCC’s desire to revive its unbounded

2004 preemption regime, despite the repudiation of that

regime by Cuomo and Dodd-Frank. The Second Circuit’s

erroneous majority decision would provide unwarranted

support for the OCC’s unlawful and dangerous agenda,

unless that decision is reversed by this Court.

12. Accord, Financial Crisis Inquiry Comm’n, The Financial

Crisis Inquiry Report 13, 96-97, 111-13, 126 (2011) (strongly

criticizing the OCC’s 2004 rules for preempting state antipredatory lending laws and undermining state efforts to stop

predatory subprime mortgage lending), https://fcic-static.law.

stanford.edu/cdn_media/fcic-reports/fcic_final_report_full.pdf.

26

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Matthew Lambert

Deputy General Counsel

Conference of State

Bank Supervisors

1300 I Street NW,

Suite 700 East

Washington, DC 20005

A rthur E. Wilmarth, Jr.

Professor Emeritus of Law

George Washington University

Law School

2000 H Street, NW

Washington, DC 20052

Stefan L. Jouret

Counsel of Record

Jouret LLC

265 Franklin Street,

Suite 1702

Boston, MA 02110

(617) 523-0133

jouret@jouretllc.com

Attorneys for Amicus Curiae