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For a residential mortgage loan made to an Illinois land trust that is secured by residential property held in the trust (where our collateral is a first lien on the assignment of the beneficial interest in the land trust), does Regulation B require us to provide an appraisal notice and copy of the appraisal? – IBA Compliance Connection

IBA Compliance Connection

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For a residential mortgage loan made to an Illinois land trust that is secured by residential property held in the trust (where our collateral is a first lien on the assignment of the beneficial interest in the land trust), does Regulation B require us to provide an appraisal notice and copy of the appraisal?

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Yes, we believe that you should provide a copy of the appraisal and appraisal notice to the land trustee for a loan secured by an assignment of the beneficial interest in the land trust, provided that the property held in the land trust is a dwelling (defined in Regulation B as a residential structure with 1 – 4 units).

The requirement to provide a copy of all appraisals or written valuations applies to any application for credit to be secured by a first lien on a dwelling. While it may be possible to argue that an assignment of a beneficial interest in a land trust is not the equivalent of a dwelling under Regulation B, the Illinois Supreme Court — when interpreting a similar question under Regulation Z — has held that credit extended to a land trust is the equivalent of credit extended to a person. Consequently, we believe it would be prudent to also treat Regulation B’s appraisal requirements as applying to a loan secured by an assignment of a beneficial interest in a land trust.

For resources related to our guidance, please see:

  • Regulation B, 12 CFR 1002.14(a) (“A creditor shall provide an applicant a copy of all appraisals and other written valuations developed in connection with an application for credit that is to be secured by a first lien on a dwelling. . . .”)
  • Regulation B, 12 CFR 1002.14(b)(2) (“The term ‘dwelling’ means a residential structure that contains one to four units whether or not that structure is attached to real property. . . .”)
  • Regulation Z, Official Interpretations, 12 CFR 1026, Paragraph 2(a)(11), Comment 3 (“Credit extended to land trusts, as described in the commentary to § 1026.3(a), is considered to be extended to a natural person for purposes of the definition of consumer.”)
  • Financial Freedom Acquisition, LLC v. Standard Bank and Trust Co., 43 N.E.3d 911, 920 (Ill. 2015), reh’g denied (Nov. 23, 2015) (Holding that “[c]redit extended to a land trust is credit extended to a natural person. Thus, the trustee of the land trust is a consumer, whose ownership interest is subject to the security interest. Accordingly, we conclude Standard, as trustee, was entitled to TILA disclosures and has the right to rescind the transaction.”)