NATIONAL BANK PREEMPTION: HAS THE SKY FALLEN?

The early returns are in and the tally does not look good for national bank preemption following the U.S. Supreme Court’s unanimous landmark decision in Cantero v Bank of America, N.A., 1 but have the U.S. Courts of Appeals gotten the analysis, or even the relevant law, quite correct yet? The first ruling up was the U.S. Court of Appeals for the First Circuit’s decision in Conti v. Citizens Bank, N.A.2 In a September 22, 2025, opinion, a panel of the First Circuit ruled unanimously that the National Bank Act (NBA) does not preempt Rhode Island’s law requiring banks to pay interest on mortgage escrow accounts. The Conti decision was followed October 2 by a panel of the Ninth Circuit that, by a 2-1 vote, reissued an opinion in Kivett v. Flagstar Bank, FSB, 3 upholding an earlier ruling that the NBA does not preempt a California law requiring banks to pay interest on mortgage escrow accounts.
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