Financial Services Blog

ECOA AND SPOUSE-GUARANTOR RIGHTS: ANOTHER COURT, ANOTHER VIEW

On the heels of the Sixth Circuit Court of Appeals’ decision in the RL BB Acquisition case that we wrote about a couple of weeks ago comes a contrary decision from the Eighth Circuit on exactly the same issue.  Is a credit guarantor an “applicant” for credit, so that the protections of the Equal Credit Opportunity Act (ECOA) extend directly to a credit guarantor? The Eight Circuit says no. Read More ›

SIXTH CIRCUIT STRENGTHENS SPOUSAL GUARANTY RULE

The Equal Credit Opportunity Act’s ban against credit discrimination on the basis of race, gender, national origin, and the other prohibited bases listed in the law – including marital status - is not terribly complex.  Since its enactment 40 years ago, the ECOA has generated only a small fraction of the lawsuits that the Truth in Lending Act has spawned.  Nevertheless, one ECOA rule in particular has continuously been an Achilles’ heel for creditors – the Spouse Guarantor Rule.  The Rule is particularly difficult to apply because it attempts to address what would seem to be a logical credit request in the structuring of a loan; that is, the personal guaranty of husband and wife business owners, who often hold jointly-owned assets.  A decision last month by the Sixth Circuit Court of Appeals in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, has now strengthened the Rule by giving it both sword and shield status in the arsenal of a spouse-guarantor defending the enforcement of a guaranty Read More ›

Supreme Court of Kentucky Rules on Check Fraud Case Involving Articles 3 and 4 of the Uniform Commercial Code.

On June 19, 2014, the Supreme Court of Kentucky issued its decision regarding check fraud in the case of Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Company.  This is an important decision for Kentucky banks and employers who authorize employee signatories on company bank accounts. Read More ›

Witness Only Closings in West Virginia and Notary Fees: Is Your Bank at Risk for a Class Action Lawsuit?

In a class action lawsuit filed in West Virginia, the United States District Court for the Northern District of West Virginia recently held in Dijkstra v. Carenbauer et al (Civil Action No. 5:11-CV-152, Document Nos. 210 and 242) that the closing of real estate loans by non-lawyers constitutes the unauthorized practice of law. The Court held: Read More ›

Peeping Tom or Best Practice? Why Regular Employee Account Monitoring May Be Necessary

The news reports of bank losses serve as both cautionary tales and teaching moments: no bank wants to find its name included in headline-grabbing stories of bank employee misconduct.  Monitoring employee accounts for fraud and malfeasance is a regulatory expectation and a best practice for fraud prevention.  While regulators may not have specified particular types of monitoring requirements regarding employee accounts, it is evident that account monitoring parameters targeting high-risk employee transactions can have a greater chance of catching employee fraud than general non-risk based monitoring. Read More ›

OPT-IN OR OPT-OUT? PLAYING DEFENSE AGAINST INTERNET PAYMENT FRAUD

Financial institutions rejoiced last year at the victory won by BancorpSouth Bank in the case brought by its customer, Choice Land Title, LLC, alleging that the Bank must compensate it for $440,000 in fraud losses it suffered arising out of fraudulent wire transfer orders executed by the Bank. (Choice Land Title, LLC v. BancorpSouth Bank, 2013 WL1121339, W.D. Missouri, 2013).  The trial court recognized the validity of the financial institution’s defense that it had acted in accordance with commercially reasonable standards, and enforced the indemnification agreement between the customer and the Bank.  After being confronted with numerous cases finding in favor of the customers who had been the victims of payment fraud, financial institutions finally had a legal precedent for holding firm on refusing to reimburse customers who suffered payment fraud losses as a result of not following the security procedures offered by their financial institutions. Read More ›

New Kentucky Rules Regarding Slander of Title Claims and Lis Pendens Filings

The Supreme Court of Kentucky, on June 19, 2014, finalized its “to be published” decision in the case of Patricia W. Ballard v. 1400 Willow Council of Co-Owners, Inc.  Although this case arises from facts involving a condominium owner’s dispute with her building’s council of owners, the case is of interest to all financial institutions engaged in mortgage lending and real estate collections.  Read More ›

Forbearance Agreements With Any Relationship To Real Property

On March 4, 2014, the Ohio Supreme Court issued its decision in First Merit Bank v. Inks, 138 Ohio St.3d 384.  In this case, the court held that the statute of frauds prohibited both a claim and the assertion of a defense by guarantors who alleged an oral amendment of a written forbearance agreement.  That forbearance agreement came within the statute of frauds because in addition to settling the liability of the borrower and guarantors, it would have impacted the mortgage securing the debt – specifically by releasing that mortgage. Read More ›

Heartbleed in the Heartland for Community Banks

During the early stages of the Heartbleed computer bug panic, financial institutions and their customers were justly concerned about the vulnerability of their e-banking systems.  It now appears that the nation’s largest banks, including most regional banks, face little direct risk, and that many community banks continue to work with their technology vendors to determine whether their core platforms used the vulnerable version of Open SSL cryptography.  On the same day Heartbleed was “publically” announced, April 7th, the FDIC re-issued its guidance “Technology Outsourcing:  Informational Tools for Community Banks.” Read More ›

Kentucky Adopts Uniform Trust Code

On April 7, 2014, Governor Beshear signed into law HB 78, which caused Kentucky to join twenty-seven other states and the District of Columbia in the adoption of the Uniform Trust Code (the "UTC"). Kentucky's adoption of the UTC makes the rules related to trust administration more similar to those in surrounding states (e.g., Ohio, Tennessee, West Virginia and Indiana, which have adopted various portions of the UTC in recent years), and it represents a substantial change to the trust law in Kentucky. In general, the UTC, among other things, (i) contains specific in-court and out-of-court procedures for terminating/modifying outdated or inflexible irrevocable trusts, (ii) more specifically defines the respective rights and duties of trustees and beneficiaries, (iii) provides statutory authority for the principles of virtual representation, and (iv) provides an extensive list of definitions applicable to the new Chapter 386B of the Kentucky Revised Statutes. Read More ›

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Attorney Spotlight

Jared M. Tully Jared Tully has extensive experience defending financial institutions in litigation involving claims of predatory lending and violation of the West Virginia Consumer Credit Protection Act and the Federal Fair Debt Collection Practices Act. Jared is also experienced in defending financial institutions in class action suits as well as defending insurance companies against claims of bad faith.

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