Despite the strong petition and amici briefs, the Second Circuit denied the request to rehear the Madden v. Midland Funding case. With the denial of the petition on August 12 (order attached), it is now clear that Madden is the law of the Circuit and will remain so unless and until the Supreme Court steps in.

There are several important state law issues that the court of appeals in Madden left open that will be addressed by the district court on remand – such as whether the district court will honor the choice of law designation of the parties (designating Delaware law as governing the loans) and, if New York law applies, whether New York law would assess the legality of the rate by looking to whether it was lawful at the inception of the loan. The denial of the en banc petition, however, does not mean that we are likely to get those answers soon...