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Nelson, Travis P.; Nolan, Siobhan A.
The Business Lawyer, 09/2017, Volume: 72, Issue: 4Journal Article, Trade Publication Article
Since the earliest days of the Republic, both legal scholars and titans of industry have had to grapple with the often competing priorities of federal power versus the hodgepodge of state regulators, both of which demand exacting adherence to often highly technical requirements. From Justice John Marshall striking down the State of Maryland's attempts to tax a federally chartered bank in McCullock v. Maryland, to Justice Antonin Scalia recognizing the State of New York's role of sovereign-as-law-enforcer in Cuomo v. Clearing House, the highest courts in the land have struggled to find a balance between upholding the powers of federal instrumentalities, and recognizing the legitimate police powers reserved to the states. In perhaps no other area of banking is this struggle for regulatory supremacy more apparent than in consumer lending, particularly residential mortgage lending. In this article, we explore the application of the evolving principles of federal preemption under the National Bank Act and regulations of the Office of the Comptroller of the Currency to state laws requiring mortgage loan servicers to provide certain notices following satisfaction of a mortgage on residential real estate. As the article discusses, while there may be notable arguments in favor of some role of the states in what would appear to be an area that is inherently local and intrastate in nature, i.e., the regulation of transfers of interests in land, in applying the delicate balance between federal and state authority, the more legally sound approach is that such attempts by states to regulate the federally granted loan servicing powers of federal instrumentalities, such as national banks, offends our traditional and widely accepted notions of preemption.
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