Lender Liability - 4th Edition - Hardcover
Lender Liability - 4th Edition - Electronic
Breach of Contract - Chapter 12 - Preview Page
§ 12.01 Overview
Oral and written contracts between lenders and borrowers are made
and broken every day. In the past it was typically lenders who sued
borrowers for breach of loan agreements; now it is the borrowers who
are suing the lenders for those breaches.
Borrowers raising breach of contract claims are bound by the same
rules of contract law as lenders. As plaintiffs, borrowers are required to
establish all the elements of a contract; as defendants, lenders can rely on
all the defenses traditionally available under contract law, including the
statute of frauds and the parol evidence rule.
The old days of documenting deals with a handshake are long gone.
Loan transactions are now frequently reflected in a complex series of
documents, some hundreds of pages long. These typically include a loan
agreement, promissory note, security agreement, guarantee, financing
statement, and deed of trust or mortgage. Given the various and
overlapping rights and duties set out in such a volume of documents, it is
not difficult to see why so many transactions result in litigation.
§ 12.02 Breach of Contract-- General Principles
Torts generally give rise to the largest variety and measure of
damages; however, some of the largest lender liability judgments in the
country have been based on simple breaches of contract.1 In proving
these claims, borrowers are guided by the same principles that govern
any breach of contract case; they must prove the existence of a valid,
binding agreement, breach of that agreement, and damages caused by
the breach.2 To establish the existence of a valid, binding agreement,
the borrower may resort to the same principles that govern any other
kind of contract.3
§ 12.01 Overview
§ 12.02 Breach of Contract -- General Principles
§ 12.03 Written Contracts and Statutes of Frauds
§ 12.04 Oral Contracts and Parol Evidence Rule
§ 12.05 Loan Commitments
§ 12.06 Damages for Breach of Contract
§ 12.07 Promissory Estoppel
§ 12.08 Specific Performance
A. Barry Cappello, Managing Partner, of the Santa Barbara law firm of Cappello & Noël, LLP. Mr. Cappello, who founded the firm in 1977, is recognized as one of the nation's leading trial lawyers and authorities on complex commercial litigation specializing in lender liability. He has represented both large and small businesses against most of the nation's major banks in litigation nationwide. His practice also involves class actions against lenders and other large corporations, bad faith insurance litigation and other complex business and tort litigation matters.
A fierce advocate for his clients, Mr. Cappello has been described by California Lawyer magazine as "Santa Barbara's Resident Barracuda," a reputation Cappello does not dispute. He has successfully tried jury trials with total verdicts in excess of $300 million and negotiated more than $1 billion in settlements and workouts for his clients.
Mr. Cappello has contributed numerous articles on complex business litigation, lender liability andadvanced trial techniques to business, legal, accounting and trade publications. Publications include Trial, The Daily Journal, The National Law Journal, Small Business Advisor and The Commercial Real Estate Journal. Mr. Cappello speaks to legal and business audiences around the country.
Before entering private practice, Mr. Cappello served a seven-year tenure as City Attorney of Santa Barbara. He was the chief litigator against the oil companies that caused the massive 1969 Santa Barbara Channel oil spill. The disaster and the ensuing litigation awakened the nation's conscious to the dangers to our environment and the tragic consequences if not protected. The case was settled in 1974 shortly before trial for $9.45 million, considered a huge sum at the time.
Prior to being appointed City Attorney of Santa Barbara, he was Assistant District Attorney and Chief Trial Deputy in the Santa Barbara County District Attorney's Office. Mr. Cappello also served as a Deputy Attorney General for the State of California assigned to the Special Trials and Investigations Division. Mr. Cappello prosecuted numerous murder, business crime and major felony cases.
Mr. Cappello has been listed in Best Lawyers in America since 1992 and in Who's Who in America. He was named a "Super Lawyer" in 2007 - 2009, and he was selected as one of the Top 100 Trial Attorneys in California for 2007 by the American Trial Lawyers Association.