Commercial Loan OfficerBusiness loan officer
At Ussery v. Branch Banking and Trust Company, 2015 WL 5655952 (N. C. Supreme Court, 25 September 2015), the claimant claimed to have had a meeting with a credit officer and a discussion of his cabinet assembly schedule and was reassured by him that his company was eligible for an SBA loan.
In the next two years, the company received three commercial credits from the banc. The applicant claimed that he often enquired about the nature of the State-backed loan and was reassured that he would obtain it. Two years after the first request, however, the loan officer notified the claimant that there was no state-backed loan available.
In this knowledge, the claimant shut down his company and began to sell his property. Conscious that he had several possible pleas against the company, the claimant nevertheless received a commercial loan from the company to help fund his debt and cut his recurring payment. The claimant later concluded several credit amendment contracts.
Every single case he confirmed his commitment and renounced any set-off and defence against the banknote or the other. More than six years after he first learned that no government-backed loan was available, the claimant lodged a lawsuit claiming neglect, reckless misrepresentation, contract infringement, dishonest and misleading commercial practice, violation of trust relationships, violation of trust obligations, and defraud.
The applicant argued that the loan officer had given various verbal undertakings during the duration of the credit confirmations that the loan would not have to be reimbursed. A summary judgement was delivered in respect of the Court, claiming that the current prescription deadline precluded any plea. An appellate split court turned back and held that the bench was fairly discouraged from reliance on its defences of containment because representations it had made to the claimant about the resolution of its disagreements may have caused him to postpone bringing actions.
Recalling that "[p]arties in general] are free to relinquish various prerogatives, even those deriving from the Statutes" RL Regi N.C., v, Lighthouse Cove, LLC, 367 N.C. 425, 428, 762 S. E. 2d 188, 190 (2014), the Supreme Court resumed a summative ruling in favour of the Court. On the other side, a defendant who on the one side recognises his indebtedness and renounces defences against that indebtedness cannot argue that he has reasonably trusted simultaneous representations that exactly the same indebtedness would be forgiven.
Whilst the Ussery submission strongly indicates that the applicant would probably have resisted a request for expedited proceedings if he had not renounced his set-off and defence privileges when reconfirming his loan, it seems clear that once a borrower takes the advantage of a loan and confirms his commitments to his lender, he can no longer depend on pledges or statements made before the confirmation.
He has to make a difficult decision for the defendant as to whether to initiate court proceedings or conclude a new agreement with his lender, albeit on less favourable conditions than he thought. It is likely that for the lender who is not able to meet more generously committed loan conditions, lending at less generously committed conditions with a lending idiom that obliges the borrower to refrain from set-off or defensive measures against the lending institution will shield the lending institution from future lawsuits, at least in commercial lending.