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The Regulation of Marketplace Lending: A Summary of the Principal Issues

March 2017

Chapman is pleased to offer once again our annual guide on the principal regulatory and securities issues applicable to marketplace lending. As in past guides, we have no shortage of topics to discuss this year as the past 12 months have seen both significant court cases and regulatory initiatives. As to the former, the Supreme Court declined to review the controversial decision in Madden v. Midland Funding, LLC, leaving unanswered questions for banks and marketplace lenders alike; “true lender” claims have continued to be raised in litigation, with courts reaching differing results; and the decision of the U.S. Court of Appeals for the D.C. Circuit in PHH Corp. v. Consumer Financial Protection Bureau called into question the constitutionality of the structure of the Consumer Financial Protection Bureau. The white paper published by the U.S. Department of the Treasury following its 2015 request for comments on marketplace lending and the recent announcement by the Office of the Comptroller of the Currency that it will consider a special-purpose national bank charter for fintech companies show an increased regulatory interest in marketplace lending and suggest that the federal banking regulators may eventually propose regulations specific to this industry. The most significant developments of the past year are discussed in the “Recent Developments” section that immediately follows the Preface. The remainder of this guide then describes in greater detail the status of marketplace lenders under existing securities, consumer protection, and other applicable laws.

"The Regulation of Marketplace Lending" continues to be a widely-cited resource within the marketplace lending industry and can also be found in a variety of marketplace lending, fintech, and banking resources.

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