The Rise of Rent-a-Charter: Examining New Risks Behind Bank-Fintech Partnerships

Courtesy of Joseph Caputo and Lee Reiners

The emergence of fintech lending – also called marketplace lending or peer-to-peer lending – and its interplay with the United States’ fragmented financial regulatory system, has given rise to a niche market of mid-size banks that cater to nonbank fintech lenders. While these banks may provide their fintech customers with specialized technology, the real “product” they are selling is regulatory arbitrage. By originating loans on behalf of fintech lenders, who handle all other aspects of the lending process, these banks allow their fintech partners to bypass state licensing requirements and interest rate restrictions. But in so doing, they are creating new risks that are little understood.

This post highlights three banks that have become highly profitable by partnering with fintech lenders: WebBank, Celtic Bank, and Cross-River Bank. These banks share several characteristics that have allowed them to capitalize on the opportunity presented by fintech lending. But as we demonstrate, their success is a direct result of an antiquated regulatory framework that is in desperate need of a rethink.

Regulatory Overview

Regulatory and legal issues are driving business model decisions across the fintech lending landscape. This is because nonbank fintech lending platforms are regulated based on the activity they’re engaged in. For example, if a nonbank fintech lending platform is engaged in loan underwriting, origination, or servicing, it will be subject to state-by-state lender licensing requirements, depending on the state that the lending platform is operating in. In addition, based on the activity of, and products provided by, the fintech lending platform, they may be subject to federal or state consumer protection laws, federal or state securities laws, as well as federal anti-money laundering statutes.

Nonbank lenders are also subject to state-by-state interest rate and fee restrictions, commonly referred to as usury laws. Under the U.S. federal system, the regulation of usury is primarily left to the states. Each state addresses the issue by establishing a maximum interest rate that can be charged on loans that a state decides should be subject to the maximum rate cap.

These state-by-state interest rate restrictions do not apply to Federal Deposit Insurance Corporation (FDIC) insured banks, because federal banking law allows a bank insured by the FDIC to comply with the usury limits of its respective home state for all loans, including those loans that are made outside of the bank’s home state (this principle is referred to as “preemption”). This means that an FDIC insured commercial bank or savings institution that engages in lending activities in more than one state is not burdened with the dilemma of addressing and resolving the differences in state-by-state usury laws because it only needs to observe the usury limits of the state where it is located. This outcome was confirmed in 1978, in a well-known U.S. Supreme Court decision: Marquette National Bank of Minneapolis v. First Omaha Service Corp.[1]

The exemption from state-by-state interest rate, or usury restrictions, is only available to banks. A nonbank fintech lender that is offering loans to consumers in all 50 states will have to be licensed in each state and comply with each state’s usury laws. Therefore, many fintech lenders are partnering with banks in order to get around these state-by-state restrictions. They are able to do this by structuring their arrangements with banks in such a way that the fintech credit platform markets to potential borrowers and negotiates, or assists negotiating, the loan agreement; and it is possible that they also may end up servicing and administering the loan. But the bank they are partnering with underwrites the loan. This loan, once it’s underwritten, may be sold back to the fintech credit platform or to another intermediary a short time after it is originated. This whole process, often referred to as “rent-a-charter”, is configured to ensure that the bank is treated as the legal creditor. And because the bank is the legal creditor, the loan only needs to comply with the usury limit of the bank’s home state. This structure enables the fintech lending platform to avoid at least some state laws applicable to consumer lenders, including state licensing requirements. Just as importantly, this structure ensures that the bank is deemed the creditor for state usury purposes. The whole arrangement works because of the long-held legal principle known as “Valid-When-Made,” which simply means that a loan that is valid at its inception cannot subsequently become usurious upon transfer to another entity, even if that entity is not a bank.

LendingClub is a publicly traded fintech lender that utilizes the rent-a-charter model. In their annual report, LendingClub provides a detailed description of their relationship with WebBank for purposes of issuing unsecured personal and auto loans:

We have entered into a loan account program agreement with WebBank that governs the terms and conditions between us and WebBank with respect to loans facilitated through our lending marketplace and originated by WebBank, including our obligations for servicing the loans during the period of time that the loans are owned by WebBank. WebBank pays us a transaction fee for our role in processing loan applications through our lending marketplace on WebBank’s behalf. The transaction fee we earn corresponds with the origination fee that WebBank charges the borrower. We pay WebBank a monthly program fee based on the amount of loans issued by WebBank and purchased by us or our investors in a given month, subject to a minimum monthly fee. Under a loan sale agreement, WebBank may sell us loans without recourse two business days after WebBank originates the loan.[2]

A Tale of Three Banks

While much has been made about fintech companies offering bank-like products and services, relatively little has been written about the banks that are catering to these companies. WebBank, Celtic Bank, and Cross River Bank have emerged as industry leaders in terms of partnering with fintech companies, and we analyze each in turn.[3]

WebBank

WebBank was founded in 1997[4] as a Utah chartered industrial loan company (ILC) by H&R Block. ILCs are state chartered, with only a handful of states authorizing them, Utah being the most prominent among them due to their low corporate tax rate, virtually non-existent usury caps, and friendly regulatory environment. ILCs have virtually all the same powers and privileges as insured commercial banks, including the protections of the federal safety net, such as deposit insurance and access to the Federal Reserve’s discount window and payments system. The key difference between ILCs and commercial banks is that ILCs operate under a special exception to the Federal Bank Holding Company Act, which means they are not subject to the same Federal Reserve prudential supervision as applies to bank holding companies and are therefore not required to maintain the separation of banking and commerce which Congress has historically mandated for bank holding companies.

WebBank was sold in 1998 – netting H&R Block a pretax gain of $1.1 million – to Steel Partners Holdings LP (SPLP), a publicly traded diversified global holding company that owns and operates businesses in various industries, including diversified industrial products, energy, defense, supply chain management and logistics, banking, and youth sports.[5] SPLP’s two largest shareholders are Warren Lichtenstein, the executive director (38.4% of shares outstanding) and Jack Howard, the president (16.2% of shares outstanding).[6]

According to former WebBank executives, in 1998 Steel Partners saw an opportunity to acquire a banking license on the cheap, but the company had little interest, or experience, in running a bank.[7] In fact, from 2004 to 2006, a time in which the banking industry was booming, WebBank lost money each year.[8] Further evidence of Steel Partners’ lack of banking experiences was provided in 2004, when the FDIC rebuked Warren Lichtenstein for failing to notify the FDIC upon acquiring a controlling interest in WebBank. From the FDIC’s letter:

While failure to provide timely prior notice in accordance with the Change in Bank Control Act of 1978 (12 U.S.C. 1817(j) (the “Act”) is attributed to oversight and unfamiliarity with the Act, each of the acquiring parties is reminded of their individual responsibility to comply with applicable banking laws and regulations. Any person who fails to provide, in accordance with the Act, prior notice of an acquisition of control of an insured depository institution may be subject to civil money penalties. We trust that greater attention will be accorded such matters in the future.[9]

WebBank found itself in further trouble in 2005, when the FDIC issued a cease and desist order after finding the bank had engaged in “unsafe and unsound banking practices and violations of the law.” The FDIC ordered the bank to stop “operating with management whose policies and practices are detrimental to the [b]ank and jeopardize the safety of its deposits” and “operating with a board of directors which has failed to provide adequate supervision over and direction to the active management of the [b]ank,” among other issues.[10]

When Gerry Smith took over as CEO in 2005, he attempted to resolve the bank’s regulatory issues and return the bank to profitability by embracing the rent-a-charter model.[11] On the latter front, he was successful. In 2006, the bank signed an agreement to originate credit card and consumer loans on behalf of Genesis Financial Solutions, Inc. Additional agreements to originate loans for fintech lenders Prosper Marketplace and Lending Club were struck in 2008, at which point WebBank was off to the races.[12] WebBank’s assets grew from $16 million at the end of 2006 to almost $85 million at the end of 2010.[13] Over that same period, WebBank’s net income to average assets went from -4.9% to 6.14%, a change so drastic that it pushed the bank from dead last in its peer group to the 99^th percentile.[14]

WebBank’s growth brought additional regulatory challenges. In 2010, the bank entered into a consent order with the FDIC in relation to its partnership with Genesis.[15] The FDIC alleged credit card loans made under this arrangement violated the Federal Trade Commission Act and the Fair Debt Collection Practices Act and accused WebBank of engaging in unsafe and unsound banking practices. The FDIC ordered WebBank’s board of directors to “participate fully in the oversight of the Bank’s compliance management system, to include assuming full responsibility for sound policies, practices, and supervision of all the Bank’s compliance-related activities.” The bank was also required to “develop and maintain effective monitoring, training, and audit procedures to review each aspect of the Bank’s agreements with third parties and the services performed for the Bank pursuant to these agreements.”

Despite the FDIC’s admonition, WebBank has continued to grow its lending partnerships. Today, the bank has close to $900 million in assets and is one of the most profitable banks in its peer group (banks holding between $300 million and $1 billion in assets).[16]  WebBank’s net income as a percentage of assets is currently 5.15%, good for top one percent in their peer group.[17]  Because their business model dictates that they hold the loans they originate on behalf of their partners for a few days, the bank classifies a large percentage of their loans as available for sale (AFS) on their balance sheet.  WebBank’s 31.16% of loans held for sale as a percentage of total loans is dramatically higher than their peer average of 0.19%.[18]  In 2018, WebBank sold over $21 million in loans that had been classified as available for sale.[19]

Celtic Bank

Celtic Bank is also a Utah chartered ILC that was founded in 2001.[20]  The bank’s holding company, Celtic Investment Inc., was traded on the pink sheets[21] until 2006, at which point it went private. [22]  Celtic Investment’s focus is “to provide primary and secondary commercial and real estate lending through its two subsidiaries.”[23]  These subsidiaries are Celtic Bank and Celtic Capital Management.[24]  Celtic Capital Management provides asset based financing for companies unable to secure traditional financing in increments between $500 thousand and $5 million.[25] Celtic Bank has close to $950 million in total assets, placing it in the same peer group as WebBank.

While Celtic Bank does not publicly disclose the fintech lenders they partner with, Kabbage, one of the largest fintech lenders to small businesses, indicates in fine print on their website that: “All Kabbage business loans are issued by Celtic Bank…”[26]

Like WebBank, these partnerships have allowed Celtic Bank to become highlight profitable, with net income as a percentage of assets of 4.61% – compared to a peer group average of 1.25%[27]  – placing them in the top one percent of their peers.[28]  Further, Celtic Bank classifies 7.21% of its loans as available for sale,[29] a far cry from WebBank’s 31.16%, but still within the top three percent of their peers.[30]

Cross River Bank

Cross River Bank is a New Jersey state chartered bank. While the bank is not a member of the Federal Reserve, its parent company, CRB Group Inc., is a bank holding company supervised by the Federal Reserve.[31]  Cross River was founded in 2008, during the depths of the financial crisis, which allowed the bank to acquire high quality assets at low cost and achieve profitability in a short period of time (five quarters).[32]

Technology has been at the core of Cross River from day one, with the bank having several high profile Silicon Valley-based investors.[33] According to CEO Gilles Gade, Cross River was designed to be: “banking-as-a-platform, enabling anybody to plug and play into the payment realms, into the payment systems, and develop not only a payment strategy but also a banking strategy.”[34] This focus on technology has allowed the bank to “specialize in originating loans on behalf of marketplace lenders”[35] like Lending Club, Upstart, and Quicken Loans.

Like WebBank, Cross River’s lending partnerships have come under regulatory scrutiny. In 2018, the bank entered into a consent order with the FDIC for unfair and deceptive practices in violation of Section 5 of the Federal Trade Commission (FTC) Act as well as violations of the Truth in Lending Act (TILA) and Electronic Fund Transfer Act (EFTA). These violations stemmed from the bank’s partnership with Freedom Financial Asset Management, LLC (FFAM), a non-bank debt relief company that contracts with consumers to negotiate settlements of their unsecured debt for a fee. FFAM offered consumers what they called C+ Loans to pay negotiated settlements to creditors and partnered with Cross River to originate these loans (FFAM handled all other aspects of the loan process, from marketing to servicing). The FDIC faulted Cross River for failing “to conduct comprehensive due diligence prior to entering into Third-Party Provider relationships to ensure adequate controls were in place to maintain compliance with applicable consumer protection laws and regulations” and failing “to conduct adequate ongoing monitoring of established relationships.”[36] The FDIC imposed a $641,750 civil money penalty and required the bank to develop a “Compliance Management System that effectively identifies, addresses, monitors, and controls consumer protection risks associated with third-party activities.”[37]

Cross River Bank is bigger than Celtic Bank and WebBank, with close to $2 billion in assets,[38] putting it in a different category of peer banks ($1 billion to $3 billion in assets).[39]  Like Celtic Bank and WebBank, Cross River is highly profitable, with a net income to average assets ratio of 2.14%, putting it in the 93^rd percentile of peer banks.[40]  Further, Cross River Bank holds 18.39% of its loans for sale, far higher than the peer average of 0.35%.[41]

Bank Commonalities

Given how profitable these three banks are, it is natural to wonder why more banks aren’t adopting a similar rent-a-charter model. However, a careful examination of what these three institutions have in common reveals ingrained advantages that cannot be easily replicated.

For starters, all three banks are relatively young, with the oldest, WebBank, founded in 1997 (although it largely sat idle until 2005). This means they were not burdened with legacy technology and were able to quickly adapt to the rise of fintech by offering the type of automated tools, like application programming interfaces, that attract fintech lenders.

Further, these institutions had sufficient financial resources, either on hand or supplied by willing investors, to take advantage of the opportunity provided by fintech lenders.  An average community bank is simply not going to have the technological or financial resources that will allow them to cater to fintech lenders. Of course, the same cannot be said for the JPMorgan’s of the world. But in their case, originating loans on behalf of fintech lenders may not be worth the legal and regulatory risks. Furthermore, large banks may run the risk of “cannibalizing their own business.”[42] As Cross River’s CEO, Gilles Gade, said: “marketplace lending would be a threat to the credit card business of most of the large credit card issuers.”[43]

Finally, in the case of WebBank and Celtic Bank, their status as Utah ILCs entitles them to favorable usury laws and less regulatory oversight, given their parent companies are exempt from consolidated supervision by the Federal Reserve. These are attractive features for fintech firms in search of a bank partner.

New Risks in the Banking Sector

By leveraging their privileged status as banks, these institutions allow their fintech partners to forgo the rigorous process of becoming a bank or complying with multiple states’ licensing requirements and usury laws. This is regulatory arbitrage pure and simple; and, as we’ve seen, the banks who practice it best can extract significant economic rents.

The great irony is that while although the long list of legislative and regulatory decisions that gave rise to current bank preemption privileges were designed to make the banking system stronger and more efficient,[44] the current bank-fintech partnership model may be having the opposite effect. Take for instance the large portfolio of available-for-sale (AFS) loans these banks hold. While the intent is to sell these loans to their fintech partner within days of origination, the fintech lender may experience some kind of stress event that prevents them from purchasing the loans. The loans would then stay on the bank’s balance sheet and because they are classified as AFS, they must be carried at fair market value. Any changes to fair value assets are reflected in the bank’s equity, meaning that if there were some kind of systemic market event that prevented fintech lenders from purchasing loans originated by their bank partners, a deterioration in loan quality would quickly erode the banks’ capital. Furthermore, such an event may prevent fintech lenders from satisfying their indemnification obligations, which would expose their partner banks to “increased risk from liability for claims made in private litigation or regulatory enforcement actions.”[45] These risks are particularly acute if the bank is reliant on just a few fintech lenders. In their 2018 annual report, Steel Partners noted that: “For the years ended December 31, 2018 and 2017, the two highest grossing contractual lending programs accounted for 29% and 40%, respectively, of WebBank’s total revenue.”[46] Banks that partner with fintech lenders are also exposed to “elements of credit and interest rate risk”[47] in excess of the amount recognized on the balance sheet, because these banks have contractual commitments to extend credit to borrowers who meet the lending criteria established by the bank through lending agreements with their fintech partners.

Partnering with fintech firms also brings additional legal and regulatory risks. As we have seen with WebBank and Cross River, banks cannot simply assume that their partners are complying with applicable rules and regulations. Banks of all sizes routinely rely on third parties to provide critical services and to purchase loans originated by the bank. Because of this, a robust regime of third-party supervision has been established at the federal banking agencies to ensure that activities that occur outside of the bank are examined and supervised to the same extent as if they were being conducted by the bank itself. If banks are to partner with fintechs, they must have adequate oversight procedures in place to ensure their partners are following the law. Given that Cross River, Celtic, and WebBank respectively have 250, 225, and 125 full-time employees, they may lack the necessary resources to adequately supervise their lending partners.[48]

Finally, the rent-a-charter business model is at risk from adverse judicial decisions.  In Madden vs. Midland Funding, LLC, the Second Circuit found that a nonbank entity taking an assignment of debts originated by a national bank is not entitled to protection under the National Bank Act from state-law usury claims.[49] There has been additional litigation and regulatory actions which have challenged lending arrangements where a bank has made a loan and then sold and assigned it to an entity that is engaged in assisting with the origination and servicing of the loan.[50] WebBank’s parent company, Steel Partners, notes in their annual report that:

Such cases or regulatory actions, if successfully brought against WebBank or its Marketing Partners or others could negatively impact WebBank’s ongoing and future business. WebBank continues to structure its programs, and to exercise control over these programs, to address these risks, although there can be no assurance that additional cases or regulatory actions will not be brought in the future.[51]

If the Supreme Court were to uphold the Second Circuit’s finding in Madden, Celtic Bank, WebBank, and Cross River Bank may no longer be viable institutions.

Conclusion

All the above risks are either created, or exacerbated, by the rent-a-charter model. Therefore, it is fair to ask: What public policy purpose is being served by a regulatory framework that allows fintech lenders to control all aspects of making a loan except one – origination? Proponents of fintech lending rightfully point out that partnering with a bank is the only option for fintech firms that want to operate on a nationwide basis but do not have the resources to obtain their own bank charter. But, if fintech lenders provide a valuable social good by expanding access to credit and/or providing credit on more affordable terms, shouldn’t policymakers facilitate their ability to operate nationwide without having to go through rent-seeking middlemen? If, on the other hand, fintech lending is simply payday lending reincarnate, restrictions on the scope of operations for fintech lenders are warranted.

While the data on fintech lending’s impact is inconclusive[52], the Office of the Comptroller of the Currency (OCC) has invoked financial inclusion as a motivating force behind the special purpose national bank charter for fintech companies (fintech charter). In a December 2016 speech announcing the fintech charter proposal, the then Comptroller of the Currency Thomas Curry said: “What excites me most about the changes occurring in financial services is the great potential to expand financial inclusion, reach unbanked and underserved populations, make products and services faster, safer and more efficient and accelerate their delivery.”[53]

The OCC recognizes that the current rent-a-charter model governing bank-fintech relationships makes little sense from a public policy perspective. In a 2018 policy statement announcing their plans to begin accepting applications for the fintech charter, the OCC noted that: “As the banking industry changes, companies that engage in the business of banking in new and innovative ways should have the same opportunity to obtain a national bank charter as companies that provide banking services through more traditional means.”[54] While the fintech charter is on hold due to ongoing legal challenges from the states,[55] its ultimate impact, if allowed to proceed, will largely depend on how the charter requirements are calibrated.

In the meantime, rapid growth in the fintech lending industry will force state and local policymakers to rethink current regulatory frameworks. The challenge is: How do you design a banking system that facilitates beneficial innovation, restricts regulatory arbitrage, and enhances financial stability? This is not an easy balancing act, but as the above bank-fintech partnership examples highlight, we can do better than the current system.

 

 

 

[1] “MARQUETTE NAT. BANK v. FIRST OF OMAHA CORP.” Findlaw, caselaw.findlaw.com/us-supreme-court/439/299.html.

[2] LendingClub Corp., Annual Report (Form 10-K), at 9 (Feb. 21, 2018).

[3] Zach Fox, Banks that issue loans for digital lenders increasingly reliant on shaky industry, S&P Global (May 31, 2016), http://m.bankingexchange.com/images/Dev_SNL/6716BanksThatIssueLoans.pdf.

[4] About Us, WebBank, https://www.webbank.com/about-us/about-us.

[5] Steel Partners Holdings L.P., Annual Report (Form 10-K), at 2 (Mar. 1, 2019).

[6] Steel Partners, Executive Management, Steel Partners, https://www.steelpartners.com/management/ (showing the management roles in the company); See Steel Partners, Proxy Statement Information (Form 14A), at 15 (Apr. 10, 2019), https://ir.steelpartners.com/static-files/8e5f92e5-c82f-4f07-9deb-80f33c7b7eeb.

[7] Kadhim Shubber, WebBank: the ugly duckling behind the San Bernardino loan?, Financial Times  (Dec. 11, 2015), https://ftalphaville.ft.com/2015/12/11/2147605/webbank-the-ugly-duckling-behind-the-san-bernardino-loan/.

[8] WebBank, FFIEC 3. (Sept. 30, 2019), https://cdr.ffiec.gov/public/Reports/UbprReport.aspx?rptCycleIds=119%2c111%2c114%2c107%2c101&rptid=283&idrssd=2576134&peerGroupType=&supplemental=.

[9] FDIC, Notice of Acquisition of Control (Notice) WebBank, https://www.fdic.gov/regulations/laws/bankdecisions/other/webbank.html.

[10] In the Matter of WebBank, Docket No. 04-281b (Jan. 31, 2005), https://www.fdic.gov/bank/individual/enforcement/12349.html.

[11] Shubber, supra note 102.

[12] Id.

[13] Webbank, supra note 8 at 5.

[14] Id at 2.

[15] https://www.fdic.gov/bank/individual/enforcement/2010-12-19.pdf

[16] WebBank, FFIEC UBPR 1. (Sept. 30, 2019), https://cdr.ffiec.gov/public/Reports/UbprReport.aspx?rptCycleIds=119%2c111%2c114%2c107%2c101&rptid=283&idrssd=2576134&peerGroupType=&supplemental=.

[17] Id. at 2.

[18] Id. at 6.

[19] Steel Partners Holdings L.P., supra note 5 at 59.

[20] About Us, Celtic Bank, https://www.celticbank.com/about-us.

[21] Chris Murphy, Pink Sheets, Investopedia (Apr. 9, 2019), https://www.investopedia.com/terms/p/pinksheets.asp (explaining “[p]ink sheet listings are companies that are not listed on a major exchange” and “[s]tocks listed on the pink sheet are usually small.”).

[22] Celtic Investment Shareholders Approve a Going Private Transaction, Business Wire  (Mar. 9, 2006), https://www.businesswire.com/news/home/20060309005632/en/Celtic-Investment-Shareholders-Approve-Private-Transaction.

[23] Celtic Investment, Inc., Hoovers 4 (Oct. 1, 2019), https://search.proquest.com/marketresearch/docview/1860781070/40E53BE1C7A74ED5PQ/1?accountid=10598.

[24] Id.

[25] Overview, Celtic Capital, http://www.celticcapital.com/about/overview.

[26] Kabbage Platform, Kabbage, https://www.kabbage.com/company/kabbage-platform/.

[27] Celtic Bank, FFIEC 6. (Sept. 30, 2019), https://cdr.ffiec.gov/public/Reports/UbprReport.aspx?rptCycleIds=119%2c111%2c114%2c107%2c101&rptid=283&idrssd=2998576&peerGroupType=&supplemental=.

[28] Id.

[29] Id. at 6.

[30] Celtic Bank, supra note 130, at 6.

[31] CRB Group, Inc., FFIEC, https://www.ffiec.gov/npw/Institution/Profile/4389329?dt=20160719.

[32] How Banking-as-a-Platform Propels Cross River Bank, Wharton (Jan. 12, 2018), https://knowledge.wharton.upenn.edu/article/banking-platform-propels-cross-river-bank/.

[33] In 2016, Cross River raised $28 million from Battery Ventures, Andreesen Howorwits and Ribbit Capital. See, https://techcrunch.com/2016/11/01/cross-river-bank-gets-unconventional-validation-with-a-28m-vc-round/

[34] Supra note 32

[35] Id.

[36] In the Matter of Cross River Bank Teaneck, New Jersey, Docket No. 04-281b at 8 (Mar. 28, 2018),  https://www.fdic.gov/news/news/press/2018/pr18021a.pdf

[37] FDIC Announces Settlement with Cross River Bank, Teaneck, New Jersey, and Freedom Financial Asset Management, LLC, San Mateo, California, for Unfair and Deceptive Practices, Press Release (Mar. 28, 2019), https://www.fdic.gov/news/news/press/2018/pr18021.html.

[38] Cross River Bank, FFIEC 5, (Sept. 30, 2019), https://cdr.ffiec.gov/public/Reports/UbprReport.aspx?rptCycleIds=119%2c111%2c114%2c107%2c101&rptid=283&idrssd=3783313&peerGroupType=&supplemental=.

[39] Id. at 1.

[40] Id. at 2.

[41] Id. at 6.

[42] Supra note 32

[43] Id

[44] Robert Eager & C.F. Muckenfuss, Federal Preemption and the Challenge to Maintain Balance in the Dual Banking System, 8 N.C. Banking Inst. 21, 27–28 (2004).

[45] Steel Partners Holdings L.P., supra note 5 at 12.

[46] Id. at 5.

[47] Id. at 30.

[48] Celtic Bank, FFIEC Call Report 5. (Sept. 30, 2019), https://cdr.ffiec.gov/Public/ViewPDFFacsimile.aspx; Cross River Bank, FFIEC Call Report 5. (Sept. 30, 2019), https://cdr.ffiec.gov/Public/ViewPDFFacsimile.aspx; WebBank, FFIEC Call Report 5. (Sept. 30, 2019), https://cdr.ffiec.gov/Public/ViewPDFFacsimile.aspx.

[49] “Madden v. Midland Funding, LLC, No. 14-2131 (2d Cir. 2015).” Justia Law, law.justia.com/cases/federal/appellate-courts/ca2/14-2131/14-2131-2015-05-22.html.

[50] Henry Morriello et al., Who’s the Lender? Two “True Lender” Cases with Implications for Marketplace Platforms, Arnold & Porter (Nov. 10, 2016), https://www.arnoldporter.com/en/perspectives/publications/2016/11/2016_11_10_who_s_the_lender_comparing_tw_13318.

[51] Steel Partners Holdings L.P., supra note 5 at 10.

[52] Vincent Di Lorenzo, Fintech Lending Risks and Benefits, The FinReg Blog (Nov. 14, 2018), https://sites.duke.edu/thefinregblog/2018/11/14/fintech-lending-risks-and-benefits/ (noting that it is unclear whether fintech lending has improved credit access to those who need it or lowered costs); See also Ben Walsh, Fintech Lending Booms. Is That a Good Thing?, Barrons (Sept. 24, 2018), https://www.barrons.com/articles/fintech-lending-booms-is-that-a-good-thing-1537803607 (noting that fintech lenders have not been tested across a full economic cycle).

[53] Remarks By Thomas J. Curry Comptroller of the Currency Regarding Special Purpose National Bank Charters for Fintech Companies. Georgetown University Law Center, 2 Dec. 2016, www.occ.treas.gov/news-issuances/speeches/2016/pub-speech-2016-152.pdf.

[54] Joseph Otting, Charter or not, fintechs are already ‘banking’, Office of the Comptroller of the Currency 1 (July 31, 2018), https://www.occ.gov/news-issuances/news-releases/2018/pub-other-occ-policy-statement-fintech.pdf.

[55] Joseph Sconyers et al., OCC Fintech Charter Headed to the Second Circuit, Jones Day (Jan. 2020),