Fintechs want to become nationwide lenders, but they just hit a major roadblock

New York’s banking regulators can proceed with their case to prevent fintech companies from acting like banks, a judge ruled Thursday.

The regulators want to block the federal government from giving fintech companies national licenses that would allow them to pay consumers’ checks and lend them money. Online lending from the “fintech” sector is booming prompting a legal duel between state and federal banking regulators on whose rules the budding industry must follow.

Manhattan Federal Judge Victor Marrero ruled Thursday that the New York State Department of Financial Services could proceed with two of its three claims against the Office of Comptroller of the Currency (OCC), an independent bureau within the U.S. Department of the Treasury.

“Today’s decision by the court is a resounding triumph for consumers and the regulated banking industry not just in New York, but across the nation,” Linda Lacewell, acting financial services superintendent, said in a statement. New York regulators have their eyes on the OCC’s “special purpose national bank” charters for “fintechs.”

Marrero’s decision recognized the experience of her department and other state regulators, Lacewell said, “and the significant role we play in regulating nonbank financial services, promoting innovative fintech products, helping to achieve a level playing field for regulated banking institutions, and most importantly, protecting consumers.”

To lend and send money, companies need licenses from the states where they operate. Many fintech companies including Avant, SoFi, a company that provides student-loan refinancing, and Lending Club — are relative newcomers in the banking world. State regulators have raised questions on what rules should apply and, as with this latest case, who should do the enforcing.

The OCC’s national charters would enable fintechs to lend and paychecks on a national scale, but not accept deposits. The newly-established charters would make the process a lot simpler for these companies and could be a boon to unbanked and underbanked communities, the OCC said. (An OCC spokesman told MarketWatch the decision is being reviewed.)

However, the New York State Department of Financial Services has raised concerns that consumers could get hurt by predatory lenders if the national charters preempt its own oversight on companies operating in New York State. For its part, the OCC has said it will scrutinize fintech companies just as hard as it scrutinizes national banks.

In September, New York State Department of Financial Services sued the OCC to block the issuance of any charters. The OCC allegedly exceeded its powers when it established the charter program this summer, New York regulators said. Jude Marrero ruled that the statute’s keywording made it clear “only depository institutions are eligible to receive national bank charters from OCC.”

There’s a similar case pending in Washington D.C. federal court. The umbrella group that represents state banking regulators across the country is also suing the OCC to block the issuance of fintech charters. Judge Dabney Friedrich, a judge in the U.S. District Court for Washington, D.C., hasn’t ruled yet on the OCC’s dismissal motion.