Lender Liability and the Duty of Good Faith

Predatory lending has caused many conflicts in the American society. Victims who fall for predatory lending are

A’s promise to B can only be enforced by B if B has given consideration for that promise;

Determine the elements of a valid contract, and discuss how consumers and banks each have a duty of good faith and fair dealing in the banking relationship.

The regulation that I have chosen for this paper is amendment in the Regulation X i.e. “Real Estate Settlement Procedures Act” and Regulation Z which is for “Truth in Lending”, for establishing the new disclosure requirements and forms in Regulation Z for the most closed-end consumer credit transactions secured by the real property. This regulation is controlled by the Bureau of Consumer Financial Protection. The role of the Consumer Financial Protection Bureau (CFPB) is to provide consumers information related to the terms of their agreements with financial companies during their application for a mortgage, choosing among credit cards, or using any number of other consumer financial products. The mortgage market is the single largest market for the consumer of financial products and the services in the United States, with approximately $10.4 trillion in loans outstanding. Since last decade, market went through an unprecedented cycle of the expansion and the contraction that was fuelled in the part by securitization of mortgages and the creation of increasingly sophisticated derivative products. This led to the collapse of financial system in 2008 and sparked the most severe recession in United States.

According to the UCC (Uniform Commercial Code) “good faith” is the belief that those involved in a contract will act honestly and fairly. That is saying that those entering a contract will act in and honest and fair manner in regards to the contracts they are entering. The obligations of good faith are part of every contract under the UCC. They act as the framework for the parties entering a contract. An example of good faith is car insurance. A person pays monthly for car insurance with the understanding that their insurance company will cover a certain amount in damages if the car is involved in an accident. If after the car is involved in an accident they insurance company does not pay the amount agreed to for the damages they have not acted

Ocwen the issue of whether or not the right to rescind could be brought as an affirmative defense against the lender, even after the three-year period for exercising that right has expired. After analyzing the nuances of the three-year period that exists for a mortgagor to exercise the right of rescission found in §1635(f), Justice Souter held that the three-year period contained in §1635(f) must act as a complete prohibition on attempts to exercise the right of rescission after the three-year period has expired. This includes exercising the right as an affirmative defense. However, the issue that the Beach Court holding did not address was whether or not a suit can be filed after the three-year period has expired, with a plaintiff having properly exercised the right of rescission within that period. Additionally, the Court did not address whether or not the bringing of a suit against the lender is a requirement of exercising the right of

…in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

Lending and mortgage loans become predatory when the borrowers are led into a different transaction than what they were led to believe or come to expect. These predatory lending practices involve different people including mortgage brokers, lenders, real estate brokers, lawyers, and even (home improvement) contractors. Most of these transactions often victimize people who have small incomes but significantly large home equity

Mutual assent and consideration go together so this paper will argue against them together. Mutual assent is the idea that all the parties in a contract know what they are contracting to and agree to it. As defined in Charles S. Knapp, Nathan M. Crystal, and Harry G. Prince’s Problems in

Importing legislation from a nation of dissimilar jurisprudential background is likey to create inconsistency in our current legal framework. Not only is the notion of good faith irreconcilable with existing common law, the concept itself is vastly uncertain and open to interpretation. It has been criticized that the misapplication of good faith in contract in US has created a state of confusion leading to irreconcilable decisions. The definition of good faith in US has largely been uncertain; it even has been referred as ‘mystery’ . The illusory nature of good faith will have a negative impact on our established legal system:

As a topic for this research paper, I decided to analyze the ethics behind the recent mortgage crisis in the United States. Banks were approving people for loans very easily, to people they knew would not be able to pay them back. Thus, many people were buying homes, missing payments, getting foreclosed on, and ruining what credit they had. Throughout this paper I intend to show how the practices that the banks were using were unethical. I will show who stakeholders were, and analyze them through Utilitarian and Kantian standpoints.

• Credit underwriting: Evaluating underwriting practices on new or renewed loans for easing in structure and terms. Reviews will focus on new products, areas of highest growth, or portfolios that represent concentrations. Examiners will continue to assess banks’ efforts to mitigate risk for home equity lines of credit approaching end-of-draw

Good faith was described by Lord Bingham in Interfoto as “playing fair, coming clean, or putting one’s cards face upwards on the table.” It owes its origins to the law of equity and can be traced back to the case of Carter v

These disclosures must be provided for closed-end credit transactions that are secured by real property. The Good Faith Estimate and Initial Truth-in-Lending Disclosures will be combined and replaced by a document called the Loan Estimate. The HUD-1 Settlement Statement Form and the final Truth-in-Lending Disclosure Form are being combined into a single five-page Closing Disclosure Form. These changes cut down on paperwork and processing time, and give borrowers a more concise set of documents that explain their rights and obligations as pertaining to the mortgage loan and repayment process.

Conceptually, reasonable expectations of honest men and sanctity of contract are not in conflict. Indeed, they often point to the same direction – it is the reasonable expectation of an honest man that an agreement should be executed. Although it is observed that the two themes usually work side by side, this essay argues that in regards to the rules of acceptance of unilateral contracts, the English courts place more emphasis on reasonable expectations when making decisions.