February 26, 2014

Important Supreme Court Case Regarding Spousal Guarantees

image by Silver Season
Few things seem to vex commercial lenders with more frequency than spousal guarantees.  The Equal Credit Opportunity Act ("ECOA"), its implementing regulation, Regulation B, and the interpretations given to them by some courts and federal regulators, can present challenges to commercial lenders when arranging and underwriting loans to married borrowers or married business owners.

A relatively recent opinion of the North Carolina Court of Appeals has held that a spouse may escape his or her obligations under a guaranty if the guaranty was improperly obtained.   

The North Carolina Supreme Court has agreed to hear the appeal of the creditor in this case.  On behalf of the North Carolina Bankers Association, one of my colleagues and I filed an amicus curiae (friend of the court) brief with the Supreme Court.  You can read our motion, which the Court granted, here, and the brief here.  Here's an excerpt:

"This case presents an issue of first impression in North Carolina, and involves issues of great importance to lenders conducting business in North Carolina, including the banking community, as well as borrowers in North Carolina who rely upon the access to credit that those lenders provide."

 

[Post Script - NC law most commonly uses the spelling "guaranty" rather than "guarantee."]

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