Contrary to some widely held and vague opinions from lender’s attorneys and banks, the banks and lenders that engaged in widespread fraud, misrepresentation and other problematic conduct are not exempt from state laws and regulations that will help local judges to get a handle on the cases in their courtrooms. For years I’ve been arguing that Plaintiffs in foreclosure case need to plead their capacity. Banks used to argue this point, but the lose every time the argument is made and now I’ve got reported cases to support the argument. The next argument banks will make is that they are exempt from state laws that relate to capacity or that those laws are preempted by federal law….WRONG!
Give Comfort to Your Circuit Court Judge
I believe local judges do not want to throw their neighbors out of their homes. I believe judges have grown tired of the lies, misrepresentations and outright fraud being perpetrated before them by the lenders and their attorneys. Having said that, your good local judges have a job to do and they do not want to be on the losing end of an appeal. That’s why it’s important that they be provided with good case law that supports the Orders we want them to issue. A key concern judges have is the belief that all banking and lending activities are regulated by federal laws. While most activities are regulated by federal law, there are important areas of law that are not preempted by state law. These areas that are described more particularly in two US Supreme Court cases,
(Click the case name to be directed to a syllabus of the case.)
Highlights from Cuomo:
- Evidence from the time of the NBA’s enactment, this Court’s cases, and application of normal construction principles make clear that the NBA does not prohibit ordinary enforcement of state law.
- The NBA provides: ” No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts . . . , or . . . directed by Congress.” 12 U. S. C. §484(a). There is some ambiguity in the NBA’s term ” visitorial powers,” and the Comptroller can give authoritative meaning to the term within the bounds of that uncertainty. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.
- This Court’s consistent teaching, both before and after the NBA’s enactment, is that a sovereign’s ” visitorial powers” and its power to enforce the law are two different things. See, e.g., Trustees
of Dartmouth College v. Woodward, 4 Wheat. 518, 676, 681; Guthrie, supra, at 159, 157; First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 660. Watters v. Wachovia Bank, N. A., 550 U. S. 1, 21, distinguished. And contrary to the Comptroller’s regulation, the NBA preempts only the former.
- Under the foregoing principles, the Comptroller reasonably interpreted the NBA’s ” visitorial powers” term to include ” conducting examinations [and] inspecting or requiring the production of books or records of national banks,” when the State conducts those activities as supervisor of corporations.
Highlights from Watters:
- State law (in this case, North Carolina law), all agree, governs incorporation-related issues, such as the formation, dissolution, and internal governance of operating subsidiaries. And the
laws of the States in which national banks or their affiliates are located govern matters the NBA does not address.
- But state regulators cannot interfere with the ” business of banking” by subjecting national banks or their OCC-licensed operating subsidiaries to multiple audits and surveillance under rival oversight regimes.
- (It comes in footnote 14)Watters does not assert that Wachovia Mortgage is out of compliance with any North Carolina law governing its corporate status.
What these cases represent is that banks and lending institutions are not totally exempt from necessary and proper state laws and regulation that help to protect local states and their citizens. It is important to keep this in mind as we help local judges understand that they do have the power to inquire and exercise control over the corporate entities that appear before them!