In about five weeks, a new compliance requirement arises for Ohio’s banks and credit unions. Under a new Ohio law, lenders must start to send notices to their borrowers before collecting a debt in default if the borrower’s residential real property secures that debt through a junior lien. Unfortunately, that new law is ambiguous, which could impose significant liability on Ohio’s lenders. As a result, they should consult experienced legal counsel to develop compliant forms and policies.
No self-respecting, examination-passing bank or credit union would ever think of lending millions without first underwriting the risk. Nor would such a lender forgo promissory notes or collateral. Yet despite fastidious care with loan documents, many lenders don’t use or pay little attention to loan commitments. But perhaps more than in any other area of banking, issues that surround offers to lend give rise to avoidable lender liability.
In the first of a three-part series on loan commitments, this post examines how commitment-based lender liability usually arises and how to avoid it.
First-year contracts class in law school is a whirlwind. Students learn about agreements whose subjects range from broiled versus stewing chickens to complex, multi-phase commercial developments—and everything in between. Nestled among those topics is, of course, how to best memorialize your future clients’ wishes in writing.
I clearly remember one class about just that—namely, how to prevent unauthorized changes to an agreement. We then students learned what we now implement: in contracts, use anti-waiver clauses and terms that forbid oral changes. But what happens, our professor asked, when the parties allegedly orally modify a contract that contains a clause the forbids oral changes?
The answer to that question is one of the biggest causes of lender liability for Ohio’s banks and credit unions.Read More...
What should a bank or credit union do when a borrower tries to make a monthly payment on a loan in default? Does that answer change when a borrower has more than one loan? And can a lender keep a partial payment made on a loan in default without jeopardizing liquidation? Ohio’s banks and credit unions face these questions in almost every loan before they file a lawsuit.
Should we, as lenders in Ohio, try to prevent foreclosure where possible? That depends on whom you ask, but the general consensus is, of course, yes. In fact, we’re often required to do so by bodies like Fannie Mae, the CFPB, and courts. But when negotiations fail, do they affect foreclosure lawsuits? Are lenders worse off for offering modifications? No, at least for careful lenders, according to a recent case that clarifies a 20-year-old rule from the Ohio Supreme Court.
Foreclosure lawsuits are exacting masters. One mistake, however small, can taint everything that comes after. A few years ago, Aurora Loan Services experienced that first hand when a missed lien extended its foreclosure case by more than three years—a mistake that could’ve cost that lender its collateral.