The Madden saga has been plaguing the marketplace lending industry for years now. We have covered this issue on Lend Academy more than any other regulatory topic. Ever since the 2015 Madden v. Midland decision by the Second Circuit the industry has been weighed down by uncertainty.
There is finally some real light at the end of the tunnel. In the last two days we have heard from both the OCC and the FDIC on the Madden issue, something they called unfathomable in a joint amicus brief in Colorado a couple of months ago. They have each given notice of their proposal that would clarify the “valid when made” doctrine once and for all.
At the core of the issue is the ambiguity created by the Madden decision. A loan can be valid when it is made but if it is sold or transferred can suddenly become invalid in the Second Circuit states of NY, CT and VT. This has led to reduced consumer lending to these states and also concern that, given no regulatory clarity, this could expand to other states.
Here are links to the OCC and FDIC proposals. There will be a 60-day comment period where interested parties can weigh in. Given the high profile nature of this case many public comments have already been made from several interested parties.