Irving Trust. The K. The court held that the lender's discretion to advance funds under a negotiated, explicit discretionary line of credit was limited by the obligation of good faith, as was the lender's power to demand repayment of any funds advanced. Additionally, the K.
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The facts behind the K. Irving Trust and K. The loan agreement provided for discretionary lending by the bank, based on a security formula derived from a percentage of K. Moreover, Irving Trust was permitted by the terms of the loan agreement to demand, solely in its discretion, repayment of the advanced money. Unfortunately, K. Consequently, it requested an amount far in excess of the amount acceptable under the security formula. In the alternative, K. Although Irving Trust did make further smaller advances enabling K. Irving Trust responded by arguing that under the terms of the loan agreement it had absolute discretion in deciding whether to make advances.
Furthermore, Irving Trust argued that because the loan was a demand loan and could have been called at any time, any implied requirement of notice prior to a refusal to advance cash would be inconsistent with this right to demand full repayment at any time. The Sixth Circuit rejected Irving Trust's arguments, and held that the lender had a duty to exercise good faith in deciding whether to refuse to make further advances or to demand repayment of the loan.
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Specifically, the court found that Irving Trust's loan was adequately secured on the day the additional advance was refused and ruled that a lender cannot terminate financing without notice even if the financing is governed by a demand loan and a discretionary right to make advances. The court noted that had it applied a subjective standard of good faith, its outcome probably would have been different. However, the court concluded that the loan was secure and that a loan officer's business reasons for terminating the financing without notice were to be judged against an objective standard: whether a reasonable loan officer, with a secured loan, would have refused to advance funds without notice to the borrower.
It was important in several respects.
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First, it marked the first time a court had invoked the good faith performance doctrine to imply an obligation, which generally is governed only by the express terms of a contract: the obligation to give notice. The loan agreements at issue required the lender to give no notice to the debtor before it either refused to make advances of funds or demanded repayment in full, yet the court implied such a requirement.
Second, not only did the court require the lender to provide notice not required by the contract, it upheld an enormous damages award based on the lender's failure to give notice. Therefore, the court penalized the lender for not doing something that, under the terms of its contract, it was not required to do. Third, the K. Under K. This simply provided a grace period for financially troubled borrowers and could result in further endangering the lender's chance of repayment.
Demand obligations allow lenders to evaluate their credit and collection risks and to evaluate the administrative and legal costs associated with such financing. Loose application of an undefined and unlimited good faith performance obligation to the simple act of calling a demand obligation could seriously harm the ability of lenders to make proper evaluation of such risks and costs, and thus could jeopardize the continued availability of that type of financing. Faced with uncertain risks and potentially enormous liabilities arising from the collection of such obligations, lenders would likely be forced to change the terms and increase the cost at which such financing is made available to borrowers.
This result could be detrimental to both lenders and borrowers. Although not explicit in the decision, the court seemed to imply that a demand obligation, standing alone with no mention of notice, did not inherently allow lenders to declare their loans immediately due and payable.
Therefore, when a notice provision was omitted entirely from a contract, courts could look to extrinsic facts to determine whether a notice requirement was contemplated by the parties. Courts could further determine that an agreement without a notice provision is ambiguous, and imply a notice requirement.
Accordingly, K. If a lender wishes to omit a notice period, then the words "without notice" should be included in the demand obligation. As a practical matter, then, liability under the K. Drafting detailed, specific loan agreements, however, may not solve the problems facing lenders as a result of cases such as K. No matter how specific loan agreements may be, lawyers can never anticipate what requirements courts may later imply under the doctrine of good faith.
Surely, Irving Trust believed its loan agreements were adequate and clear until the K. Nevertheless, lawyers must take the initiative to draft contracts in as much detail and as unambiguously as possible to avoid liability on the part of their clients for breach of the good faith performance obligation. Criticisms of K. The strongest criticisms of the good faith doctrine are that it destroys the bargain, limits contractual freedom, creates uncertainty, and creates inefficiencies. The good faith doctrine is responsible for these when it is applied to override express contract terms.
When this is done in commercial lending, the argument maintains that the lender is unexpectedly forced to bear additional costs that it cannot avoid by careful planning. The demand provision illustrates this point. If unable to protect itself with this provision, the lender is forced to expend greater costs to gather information and to insure it against risks that the borrower may be more willing to bear.
At best, this requires the borrower to pay higher interest rates or to repay on less favorable terms; at worst, it causes the lender to refuse the loan altogether. Home Prod. Accordingly, the courts applying New York law have declined to follow K. These courts have enforced the specific and literal provisions of the contract between the parties, emphasizing that an implied obligation of good faith and fair dealing will not override the express terms of a contract.
For example, the court refused to apply a good faith standard in Spencer v.
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Chase Manhattan Bank. Spencer executed notes held by Chase, where Spencer also had two accounts. After three years, Chase informed Spencer that it wished to terminate their relationship. Subsequently, Chase set off the balance of Spencer's accounts against Spencer's debt and Spencer alleged that no demand for payment was made before this setoff occurred.
Generally, demand notes are considered due and payable immediately upon their execution with or without a prior demand. There was evidence that a formal demand was required before setoff could have occurred. While demand notes ordinarily do not require a formal demand, the court found that in this case it appeared the parties intended that such a demand was required as the notes listed various contingencies for rendering them due and payable. The court stated: Where the terms and conditions of a so-called demand note indicate that the parties intended the obligations to become due and payable upon the happening of a future event, the debt is not mature upon execution of the note.
The obligation matures only when the agreed-upon even occurs. Although the court agreed with Spencer that demand for payment was a prerequisite to a proper setoff in this case, it disagreed with the contention that the good faith obligations imposed by the U. The court reasoned that: The holder of a demand note does not need a good faith reason or any reason at all to demand payment.
Demand instruments are specifically exempted from the good faith obligation applicable to accelerated clauses under U. For this reason, the court did not accept K. The court stated that although it seemed that Chase had the right to refuse to honor checks drawn on uncollected funds, where the course of dealing indicated that Chase had never asserted the right against Spencer, a jury could find that good faith required Chase to give notice to Spencer before the rule took effect.
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While Spencer was not entitled to notice of the setoff, the court said Chase was required to exercise good faith in performing its contractual obligation to make a demand. If it deliberately sent the demand letter in a manner calculated to disadvantage Spencer, then a claim for the violation of the good faith obligation imposed by the U. The additional term would be that the note was not payable at any time demand was made, but only payable when the demand was made in good faith.
The parties by the demand note did not agree that payment would be made only when demand was made in good faith but agreed that payment would be made whenever demand was made. The great weight of authority is that a creditor holding a demand instrument need not exercise good faith in determining when to demand payment. The Seventh Circuit was most critical of K. First Bank. In late , the shoe retailer experienced cash flow problems.
The bankruptcy court approved the loan and its terms.
On January 23, , the loan agreement was signed and Bank was transformed from an unsecured lender to a supersecured lender over time as inventory was converted into new accounts receivables that arose after the making of the DIP financing loan on a secured basis. On February 19, , Bank notified the shoe retailer that all advances would stop in a week. Although the note underlying the line of credit required payment on demand, Bank did not make the demand.
In the spring of , the shoe retailer proposed its fourth plan of reorganization. The bankruptcy court held an evidentiary hearing in which it found Bank behaved inequitably by waiting until there was a complete turnover and its entire loan had become fully secured before declaring default and vacated the previous financing order.
A judge lacks the power to undo the priority granted by a financing order without first finding that the creditors acted in bad faith. The Kham court further stated that unless pacts are enforced according to their terms, the institution of contract, with all the advantages of private negotiation and agreement, is jeopardized.
The Kham court explained that when the contract is silent, principles of good faith fill the gap. They do not block the use of terms that actually appear in the contract. The Seventh Circuit stated that the contract did not oblige Bank to make all advances for which it could be assured payment.
Risk must be assessed ex ante by lenders, rather than ex post by judges. The Kham court said Bank was entitled to advance its own interests, and it did not need to put the interest of the shoe retailer first. Unless the provision violates public policy or is unconscionable, courts will typically enforce the provision before implying an inconsistent duty of good faith.
Indeed, Society had every right to seek judgment on the various obligations owed to it. Ohio courts uniformly reject the holding in K.
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The extent of this rule is demonstrated by Allonas v. In Allonas, two inventory lenders sought repayment while the borrower store owners were on vacation. The store owners allegedly offered to return immediately, but claimed that the lenders told them no repossession would occur until their return from vacation. In fact, repossession occurred approximately four hours after the telephone conversation with the store owners. On appeal, the court affirmed a summary judgment ruling that the repossession was proper. Since repossession was a right granted to the lenders by contract, and since the loan agreements stated that no modification or waiver would be effective unless in writing signed by a duly authorized officer, the evidence of a purported agreement not to repossess did not create a triable issue of fact.
Courts in New York have been reluctant to apply a duty of good faith to demand instruments as in K. In Murphy v. In Gillman v. Chase Manhattan Bank, N. Thus, where there is a risk that notice may threaten the secured position of a bank, the duty of good faith does not compel advance notice of a charge against collateral. The good faith obligation may not be imposed to override express terms in the contract. Gray Distribution Sys. Gray borrowed funds from Flagship by executing a promissory note.
The court held that: Under some circumstances, a written agreement may be modified by a course of dealings, however, when a course of dealings and the express terms of an agreement appear to conflict, the practice of the parties and the agreement must be construed, wherever reasonable, as consistent with each other. If no reasonable consistent construction can be drawn, the express terms of the agreement control.
Very helpful to us at a time when we could use a more thorough understanding of what is legal. That is from what had been done to us. Easy to understand for average Joe. Just wish we could hire this guy! There was a problem loading comments right now. Showing 0 comments. Sort by: Newest Oldest. The book is a comprehensive over view of Lender Liability Law.
What I really liked was the author's treatment of the various causes of action and theories of recovery with respect to different jurisdictions. The book is well organized and loaded with case law and analysis. I wanted to know if the book was new and in shrink wrap and it was as described.
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