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Fiduciary Loan Agreement

Finally, the agent should formalize these steps by forming an investment statement on the investment policy containing the details necessary for the implementation of a specific investment strategy. The agent is now ready to continue the implementation of the investment program, as was noted in the first two steps. A Treasury Agency department, the Office of the Comptroller of the Currency, is responsible for regulating federal savings associations and their fiduciary activities in the United States. Many fiduciary duties can sometimes be contradictory, a problem that often arises among real estate agents and lawyers. Two competing interests can, at best, be balanced; However, the balance of interests is not the same as serving a client`s well-being. In Dolton v. Capitol Federal Savings and Loan Association,[27] a real estate developer attempted to finance the purchase of real estate through the lender. When the lender became aware of the property, it refused the loan to the developer and the lender`s subsidiary then purchased the property from the owner. In reviewing the breach of the loyalty obligation, the Tribunal reiterated the general rule that there is no fiduciary relationship between a borrower and a lender, but also acknowledged that there could be «in the event of the client`s trust, at the same time as an acceptance or invitation» of the lender.

[28] In this case, the question was whether the client trusted the lender to treat confidentially the information relating to the proposed purchase of the property and whether the lender accepted or invited that trust company. The court found that where there was a trust relationship, the lender had an obligation to refrain from any transactions contrary to its client, as «an agent is required not to disclose confidential information or otherwise abuse it.» [29] The Tribunal found that the long-term business relationship between the parties could reasonably have prompted the client to relax the diligence he might otherwise have done in his dealings with the bank. In Dolton, the bank profited directly from the misuse of its customers` confidential information. However, in Boling v. Tennessee State Bank,[30] the benefit to the bank was much more indirect, so there was no use, but the bank was still held responsible for the fraudulent conduct of its credit officer. There, the borrowers discussed with the bank president the need for a loan. Borrowers informed the President that they were interested in using the proceeds of the loan for the sale of a hotel. One of the bank`s board members was also a member of an investment group that competed with borrowers in its offer on the hotel. The Director used the information contained in the credit report to prepare his own offer on behalf of the asset group that eventually took over. In determining the bank`s liability, the Tribunal found that borrowers had spent considerable amounts of money to ensure that their personal data made available to the bank had not been passed on to or used by a competitor. In addition, the court found that the bank violated its privacy and conflict of interest policy statement when it allowed the director to abuse confidential information provided by borrowers to advance their own interests. Finally, the court refused to make the bank liable according to an assistant liability theory.

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