• Connecticut - Variable annuity seller licensing
• Florida - State authorization for sale of annuities
• Texas - Authority to sell annuities

• See OCC Interpretive Letter No 749

• Texas statute that requires a national bank to register with the state as an investment adviser before providing investment advisory services to its trust customers is preempted

• California - Local laws in California purporting to bar national banks from ''surcharging'' automated teller machine (ATM) users who are not bank account holders are preempted by the National Bank Act, which authorizes national banks to provide ATM services and to charge for the services they provide

• California - National Bank Act and the OCCs regulations preempted local ordinances prohibiting national banks and savings & loan institutions from charging ATM fees to non-depositors

• Bank of America, NA v City and County of San Francisco, 309 F3d 551 (9th Cir 2002)

• Massachusetts & Florida - State law purporting to restrict the ability of a national bank located elsewhere to establish and operate ATM machines in these states are preempted

• See OCC Interpretive Letter No 939

• Colorado - Statute prohibiting national banks from placing their names on ATM machines and giving state banking authority over ATM machines is preempted

• See OCC Interpretive Letter No 789

• Nationwide loan production offices
• Deposit production offices
• ATMs
• Remote service units
• Other non-branch facilities

• Preempting state laws regulating the exchange of information among affiliates invalidates the requirements and prohibitions imposed by the California Financial Information Privacy Act (commonly known as SB1) with respect to affiliates sharing information bearing on

• A consumers creditworthiness
• Credit standing
• Credit capacity
• Character
• Rr other factor used to establish the consumers eligibility for credit or insurance
• See American Bankers Assn v Gould, 412 F3d 1081
  (9th Cir 2005)

• Insurance sales
• Solicitations
• Cross-marketing activities

Specifically, federal law preempts the provisions of Massachusetts law that purport to prohibit

• The Massachusetts Insurance Commissioner filed a petition in the First Circuit seeking review of that OCC preemption letter. The court dismissed the petition, holding that the dispute between the OCC and the commissioner was insufficient to create a justiciable case or controversy and should be deemed to fall outside the scope of the statutory provisions for judicial review

• Bowler v. Hawke, 320 F3d 59 (1st Cir 2003)
• See Massachusetts Banking Ass'n v Bowler,
  392 F Supp 2d 24 (D Mass 2005)
• See also the Topic Administrative Law

• Majority of the panel held that the petitioners had standing to bring the suit, that the OCC had implicit authority under the Gramm-Leach-Bliley Act to issue its preemption opinion, and that the statutes were preempted by the National Bank Act
• One of the judges dissented on the ground that the petition presented no justiciable case or controversy. Petitioners filed a petition for rehearing, which the OCC was ordered to answer, and which was ultimately denied

• The specific Ohio law provisions at issue were the Ohio ''principal purpose test'' and corporate organizational requirements that have the effect of significantly hindering a national banks sale of insurance in Ohio
• The case was remanded to the district court to address the issue of what effect, if any, the preemption provisions in the Gramm-Leach-Bliley Act have on the preemption analysis

• Association of Banks in Insurance v Duryee, No 99-3917 270 F3d 397 (6th Cir)  11.01.01

• Certain provisions of Ohio law that purported to limit the ability of national banks to engage in the business of leasing automobiles
• As interpreted by the Ohio Bureau of Motor Vehicles, Ohio law prohibits the public sale of reclaimed leased vehicles
• Direct sales to the public are permitted in the case of repossessed vehicles, but vehicles reclaimed from a lessor for non-payment are not considered ''repossessed'' under Ohio law
• As a result, national banks would be required to sell reclaimed leased vehicles at wholesale to persons licensed as dealers under state law
• These requirements frustrate the ability of national banks to operate efficiently and in a manner consistent with safe and sound banking practices, and therefore are preempted

• Texas - A Texas regulation requiring licensing of loan production offices as a condition for operation, and regulating the types of activities that can be conducted at such offices, is preempted

• This enables national banks to conduct a nationwide trust business notwithstanding branching requirements or state law prohibitions, restrictions, or licensing requirements in states in which the activities are being conducted through nonbranch offices

• 12 USC 92a
• OCC Interpretive Letters No 872
• OCC Interpretive Letters No 866

• A national bank looks to the law of the state in which it acts in a fiduciary capacity in order to determine which capacities are permissible for the bank to act in for customers in that state as well as other states
• A states authority to regulate instrumentalities of its own government

• For example, by enacting state laws restricting the types of trustees, or other fiduciaries, those state government instrumentalities may appoint

• Does not affect the fiduciary authorities granted to national banks as a matter of federal law

• See OCC Interpretive Letter No 973   8.12.03

• Pursuant to the OCCs regulations at 12 CFR 9.7(e)(2), any state law, other than a law made applicable by 12 USC 92a, that limits or establishes preconditions on the exercise of the fiduciary powers that are to be exercised as part of the banks program are not applicable to the bank
• Finally, while a national bank may have the federal authority to act in various fiduciary capacities in a given state, that authority does not determine whether a state instrumentality has authority under its governing state statutes to contract with the national bank for fiduciary services

• See OCC Interpretive Letter No. 995  6.22.04

Naming and advertising of branch facilities:

"State unclaimed property and Escheat Laws"

Sunday operations

• National banks may charge a non-accountholder a convenience fee for using a bank teller to cash an ''on us'' check. The fee is essentially compensating the bank for making cash immediately available to the payee; otherwise the payee would have to wait for the check to clear through the payment system. 12 USC 24 (Seventh), preempts state law prohibiting the charging of fees for cashing on-us checks

• Wells Fargo v James, 321 F3d 488 (5th Cir. 2003)

• National bank has authority, pursuant to 12 USC 24(Seventh) and 12 CFR 7.4002, to charge fees for the service of cashing checks drawn the bank and payable to non-accountholders of the bank
• Letter from Julie L Williams to John H Huffstutler, Esq, Associate General Counsel, Bank of America Legal Department 10.08.02
• Letter from Julie L Williams to J Thomas Cardwell, Esquire, Akerman, Senterfitt & Eidson, P A 4.04.02

• Pennsylvania - Law purporting to regulate auctioning of certificates of deposit over the Internet preempted

• 65 FR 15037  3.20.00

• New Jersey - Consumer Checking Act is preempted

• Final rule addressing debt cancellation contracts and debt suspension agreements
• The purposes of the customer protections are to facilitate customers informed choice about whether to purchase debt cancellation contracts and debt suspension agreements, based on an understanding of the costs, benefits, and limitations of the products and to discourage inappropriate or abusive sales practices
• The final rule also promotes safety and soundness by requiring national banks that provide these products to maintain adequate loss reserves
• The final rule was published in the Federal Register at
  67 FR 58962  9.19.02
• The OCC subsequently delayed, pending further action, the date for mandatory compliance with certain provisions of the rule for national banks offering debt cancellation or debt suspension products through a non-exclusive agent in connection with closed-end consumer credit. See Federal Register at 68 FR 35283   6.13.03

• Texas - A Texas administrative interpretation that the Texas Credit Code prohibits national banks from offering debt cancellation contracts is preempted

• A national bank has authority, pursuant to 12 USC 24 (Seventh) and 12 CFR 7.4002, to charge NSF fees when the fee resulted, in part, from the banks policy of posting checks in order from the highest to the lowest amount.
• Assistant General Counsel, Wells Fargo Bank  4.15.02

• National banks can charge prepayment fees to the same extent as federal savings associations under 12 USC 85 and the Michigan parity statute that allows state banks to charge prepayment fees to the same extent as federal savings associations

• See OCC Interpretive Letter No 1004  8.04.04

• Kentucky, West Virginia & Ohio - Statutes prohibiting out-of-state national banks from transacting business are preempted
• Connecticut - Statutes prohibiting out-of-state national banks from transacting business in Connecticut, unless permitted under state law, requiring state approval for the merger of an out-of-state national bank with a Connecticut bank, and requiring state approval for branching in Connecticut by an out-of-state national bank, as permitted by federal law, are preempted

• Idaho, Kansas & Maryland - Statutes prohibiting out-of-state national banks from branching as permitted by federal law, are preempted
• Texas - Statutes that purport to prohibit an out-of-state national bank from having branches in Texas acquired pursuant to federal law are preempted

• See Corporate Decision 98-07  1.15.98

• Missouri & Wisconsin - Statutes that prohibit an out-of-state national bank from exercising fiduciary powers in Missouri and Wisconsin are preempted

• See Corporate Decision 98-16  3.04.98
• See Corporate Decision 97-33  6.01.97

• Texas - Statute that purports to prohibit interstate mergers under the Riegle-Neal Act is preempted as to a merger authorized under other federal law (e.g., merger of an out-of-state national bank with branches in Texas and an in-state national bank pursuant to 12 USC 215a

• In addition, a Texas constitutional provision that appears to prohibit out-of-state national banks from conducting business in Texas and a statute that prohibits out-of-state national banks from conducting fiduciary activities in Texas are preempted. 
• See Corporate Decision 98-19  4.02.98

• Kansas Statute prohibiting out-of-state national banks owned by bank holding companies from relocating into Kansas, as permitted by federal law, is preempted

• The amount of a loan in relation to the appraised value of the real estate
• The loan repayment schedule
• The term to maturity of the loan
• The amount of funds that may be loaned upon the security of the real estate
• The covenants and restrictions that are required to qualify the leasehold as acceptable security for a real estate loan

• A state law that places restrictions on the terms of loans with balloon payment features is preempted with respect to a national bank and its operating subsidiaries.

• See OCC Interpretive Letter No 1015

• Section 24-4.5-3-402 of the Indiana Code is preempted with respect to a national bank's  originating of subordinate lien mortgages

• See OCC Interpretive Letter No 1015

• A usury provision in the Arkansas constitution applies to national banks in the same manner as it applies to state banks, and therefore is NOT preempted

• Idaho - Provisions of statute requiring annual reports and fees as a condition to being permitted to extend consumer credit are preempted
• Georgia - Georgia Fair Lending Act partially preempted - applicability to mortgage brokers 

• See OCC Interpretive Letters Nos. 1000 and 1002

• Provisions of the Georgia Residential Mortgage Act that impose registration and fee requirements as a condition to transacting business directly or indirectly as mortgage brokers or mortgage lenders are preempted
• Pennsylvania - Residential mortgage loan terms prescribed by the Pennsylvania Banking Code do not apply to national banks (applying former 12 CFR 34.2), and Pennsylvania state-chartered banks can choose to follow OCC regulations instead of state law (applying 12 USC 3803)
• Michigan - Michigan statute that would limit the ability of national banks to use agents to make loans to finance motor vehicle sales is preempted. The state law would have had the effect of prohibiting national banks from charging interest at a rate permitted by their home state as authorized by 12 USC 85, and would have imposed a licensing requirement on national banks as a precondition to exercising permissible federal powers. 66 FR 28593   3.23.01
• Connecticut - State laws that purport to impose on national bank operating subsidiaries a state regulatory regime requiring businesses engaged in the making of first and second mortgages to obtain a state license and subjecting them to enforcement proceedings by the Banking Commissioner are preempted

• Wachovia Bank, NA v Burke, 319 FSupp 2d 275
  (D Conn, 2004)

• Michigan - 12 CFR 7.4006 preempts state law that purports to authorize the Michigan banking commissioner to require national bank operating subsidiaries to obtain a state license in order to engage in the business of making of first and second mortgages on behalf of its parent bank

• Wachovia National Bank v. Watters, 550 US ___ 2007