The US Office of the Comptroller of the Currency has published a notice of proposed rulemaking in the Federal Register to promote a regulation to determine when a national bank makes a loan and is the 'true lender' in the context of a partnership between a bank and a third party such as a marketplace lender.
According to the proposal, a bank makes a loan if, as of the date of origination, it is named as the lender in the loan agreement or funds the loan. Comments must be received on or before 3 September.
A 'national bank' in the US context is an ordinary private bank operating in a specific regulatory structure, which may or may not operate nationally, under the supervision of the OCC.
Federal law authorises banks to sign contracts, to make loans and to subsequently transfer these loans and assign loan contracts. The statutes, however, do not state specifically which entity makes a loan (or, in the vernacular commonly used in case law, which entity is the “true lender”) and, therefore, what law applies when the loan is originated as part of a lending relationship between a bank and a third party. The OCC has never before taken regulatory action to resolve this ambiguity. In the absence of regulatory action, courts are left to determine when, in a lending partnership, a bank is making the loan and when its partner makes the loan. A growing body of case law has introduced divergent standards for resolving this issue.