Mitigating lender liability claims through improved procedures and disclosure statements

The climate of US banking in the 1990s suggests an addition to the old cliche about the things in life that are inevitable. A banker involved in commercial lending these days can be sure of three things: death, taxes, and lender liability litigation. This article is not intended to be an exposition on the theories of lender liability. Recent articles in this Journal and in many other publications have outlined in detail leading case decisions in lender liability and the theories of offense and defense arising therefrom. This article is designed to assist commercial banks and their legal counsel in mitigating lender liability through the implementation of disclosure statements called Lender Liability Obligations and Procedures that make both borrowers and their lending institutions aware of their obligations and responsibilities when a loan is made. (Reprinted by permission of the publisher.)
As an expert witness in the field of lender liability, I have observed that most lender liability cases seem to have all the following characteristics: 1. The borrower has defaulted [...]