Originally from:
Lender Liability - 4th Edition - Hardcover
Lender Liability - 4th Edition - Electronic
Conversion - Chapter 20 - Preview Page
§ 20.01 Overview
Lenders can be liable for conversion when they take borrowers'
property or exercise wrongful dominion and control over it. The usual
situations in which this happens include a lender's improper
repossession of collateral pledged by a borrower, improper offset of
funds in a borrower's account, and an unjustified refusal to return a
deposit or fee paid by a borrower. However, liability has been imposed
in other situations in which lenders refused to return funds and other
property to borrowers.
§ 20.02 General Principles
While the elements of a conversion claim vary from jurisdiction to
jurisdiction, it is generally recognized as a wrongful interference with
another's right of possession. The Restatement defines conversion as "an
intentional exercise of dominion or control over a chattel which so
seriously interferes with the right of another to control it that the actor
may justly be required to pay the other the full value of the chattel."1
In considering the seriousness of the interference and the justice of
requiring payment, the Restatement notes the following as important
factors:
(a) the extent and duration of the actor's exercise of dominion or
control;
(b) the actor's intent to assert a right in fact inconsistent with the
other's right of control;
(c) the actor's good faith;
(d) the extent and duration of the resulting interference with the
other's right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.
§ 20.01 Overview
§ 20.02 General Principles
§ 20.03 Common Applications of Theory
§ 20.04 -- Wrongful Repossession
§ 20.05 -- Wrongful Offset
§ 20.06 -- Refusal to Return Deposit
§ 20.07 -- Other Applications
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.
