Banking Law: November 2020 Archives

Party Who Successfully Disputed Being Party to Mortgage Cannot Claim Rights Under Disavowed Mortgage to Challenge Foreclosure

The Massachusetts Appeals Court ("Appeals Court"), in an unpublished opinion, has held that where an alleged mortgagor has successfully argued that she is not party to a mortgage, she cannot later challenge a foreclosure of that mortgage on the grounds that the foreclosing bank allegedly violated her rights with respect to notice of the foreclosure.  21st Mortgage Corp. v. Lapham

Office of the Comptroller of the Currency Issues "True Lender" Rule

While federal law permits national banks to transfer loans and assign mortgage loan contracts to third-party lenders, courts across the country have sometimes struggled, when loans are challenged in litigation, to determine which entity legally made the loan.   This ambiguity was problematic because national banks and third-party lenders are often subject to different laws, and the applicable law is determined by which entity is deemed to be the true lender.  Moreover, as the Office of the Comptroller of the Currency (OCC) noted, this ambiguity also discouraged banks from entering into lending contracts with third parties, thereby restricting competition and stifling innovation.  As a result, in late October 2020, the OCC issued a new rule intended to remedy the confusion and provide national banks and third-party lenders with the legal certainty necessary to enter into such agreements.  The rule goes into effect on December 29, 2020.

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