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OCC Proposal Would Bring Certainty to the Identity of the “True Lender”

By James M. Kane, James W. Morrissey, Daniel C. McKay, II, Jennifer Durham King, Juan M. Arciniegas & Mark C. Svalina on July 21, 2020
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Bank Vault

Markets like certainty.  On July 20, 2020, the Office of the Comptroller of the Currency (the “OCC”) proposed a new rule for national banks and federal savings associations that would solve the “true lender” question and help bring certainty to financial markets.  Under the proposed rule, a bank will be deemed the “true lender” in a bank partnership model if it is either (i) the named lender in the underlying loan agreement or (ii) the party that funds the loan.

As of late, state regulatory agencies across the U.S. have brought “true lender” actions seeking to invalidate various “bank partnership models” used by both banks and non-bank lenders to generate consumer and small dollar business loans.  In reviewing these challenges, courts have struggled with whether the “true lender” in these partnerships is the bank or the non-bank lender, with some courts looking at multiple factors in reaching a decision.  The distinction is important inasmuch as it determines whether the National Bank Act applies, or whether the loan is to be governed entirely by state law.  The proposed rule is applicable only to national banks and federal savings associations and would resolve the question by establishing clear rules based upon whether the bank is (i) the named lender or (ii) the party funding the loan.

Since the rule is being proposed by the OCC, it is of course not applicable to state-chartered banks and, consequently, fails to address the uncertainty in state-chartered bank partnership models.

A copy of the proposed rule can be found by clicking here.

Photo of James M. Kane James M. Kane
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Photo of James W. Morrissey James W. Morrissey
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Photo of Daniel C. McKay, II Daniel C. McKay, II
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Photo of Jennifer Durham King Jennifer Durham King
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Photo of Juan M. Arciniegas Juan M. Arciniegas

Mr. Arciniegas works primarily as a derivatives lawyer and covers markets for over-the-counter (OTC) derivatives, structured finance products and listed futures. He advises on every stage throughout the life cycle of a derivatives transaction, providing assistance to a wide range of market participants…

Mr. Arciniegas works primarily as a derivatives lawyer and covers markets for over-the-counter (OTC) derivatives, structured finance products and listed futures. He advises on every stage throughout the life cycle of a derivatives transaction, providing assistance to a wide range of market participants engaged in the markets in various capacities. Regulatory matters range from assisting clients on financial reform legislation, registration and membership with the CFTC, NFA, and other financial market utilities, to providing guidance to commercial end-users and sell-side participants on exemptions, cross-border access issues, and matters involving the overlapping jurisdiction of securities and commodities regulation. Transactional matters include the negotiation and implementation of comprehensive documentation for agency-MBS, cleared and OTC derivatives, FX, futures, loan-level hedging arrangements, prime brokerage, repurchase transactions, securities lending, structured finance transactions, and related industry protocols implementing changes in those markets. Mr. Arciniegas has appeared before the CFTC, the Federal Reserve, the SEC, and is a frequent speaker and published author on futures and derivatives topics.

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Photo of Mark C. Svalina Mark C. Svalina
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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    The 21st Century Banker
  • Organization:
    Vedder Price PC
  • Article: View Original Source

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